What a law is

A law in general is a rule of conduct, but the term needs to be defined more exactly in order to mark it off from precepts and counsels, A law, then, in the strict sense of the word, is, according to St Thomas, an ordinance of the practical reason for the common good, promulgated by him who has care of a society.¹

It is said to be an ordinance of the practical reason, for a law orders human actions with a view to a certain end, but to order and select proper means toward an end belongs to the reason; and since the ordering in question has reference to practice and is imposed by authority, it is attributed to the practical reason. Law, then, begets an obligation in the subject, and in this differs from a counsel.

For the common good indicates the end of all good laws.

By him who has care suggests the source of law which can only be one who has authority over the whole community. Regulations made by subordinate authorities are called in English by-laws, in ecclesiastical language, statutes.

Of the society—These words imply that the subject of law is not a single person or a family; a law is made for a community more or less numerous.

Promulgated—Promulgation is the publication of the law by legitimate authority with a view to imposing an obligation. Some sort of promulgation is required in order that subjects may know of the existence of the law and the time when it begins to bind. In English legislation the time when a law will begin to take effect is often set down in the law itself; otherwise it begins to oblige when it receives the royal assent, by which act it is also promulgated.

There used to be a controversy as to what sort of promulgation is necessary in order that ecclesiastical laws may be binding. Many canonists maintained that in this matter canon law followed the civil law, which required that a new ordinance should be promulgated in the different provinces of the Empire, and should begin to bind after a period of two months, In recent times the opinion has become prevalent that authoritative publication in Rome is, by the very fact, promulgation for the whole Church. This is certainly sufficient if the Supreme Pontiff makes known his intention to bind the whole Church by mere publication in Rome, as Leo XIII seems to have done in his legislation about forbidden books.² Not unfrequently there is a special clause in ecclesiastical laws which defines the mode of promulgation, as in the decree Tametsi of the Council of Trent (sess. 24, De Ref. Matrim., c. 1), in the Constitution of Clement XIV, Dominus ac Redemptor, July 21, 1773, and in the Constitution of Leo XIII, Romanos Pontifices, May 8, 1881. Sometimes a new law is sent to the Bishops, whose duty it is to see to the execution of the Pontiff’s will.

The new Code of Canon Law prescribes (Can. 9) that laws made by the Apostolic See are promulgated by their publication in the official Acta Apostolicae Sedis, unless in particular cases some other mode of promulgation is prescribed; and they only begin to have force after the elapse of three months from the date of the number of the Acta Apostolicae Sedis in which they are published, unless from the nature of the matter they bind immediately or a shorter or longer term is specially and expressly laid down in the law itself.

The Fathers of a Plenary or Provincial Council themselves determine the mode and time of promulgation of the decrees of the Council after revision by the Sacred Congregation of the Council (Can. 291); a Bishop determines the mode of promulgation of his own laws in or out of Synod (Can. 335, sec. 2).

¹ St Thomas, 1-2, q. 90, a. 4.

² Index librorum prohibitorum, 1900.

From what has been already said it will be clear how a law differs from a precept. A law is a regulation made by a public authority for the common good, and directly affects a definite territory, and indirectly those who live therein. It is stable and permanent, as is the society for whose good it is made. A precept, on the other hand, is imposed also by private authority for the good of the individual, and directly affects the person—haeret ossibus. Regularly a precept is limited in time and expires with the death or removal from office of him who gave it.

I. Definition. Law is said: according to Tully (De legibus, bk. 1), from legendo, that is, from choosing, because among many things it chooses what must be done or omitted; according to St. Isidore (Etymologies, bk. 2, c. 10), from legendo, because it is usually written and therefore read; according to St. Thomas (I-II, q. 90, a. 1), from binding, because it binds or obliges; according to today's philologists, from a root common with the Greek verb legein, that is, to say. But law, with St. Thomas, is usually defined: "A certain ordinance of reason for the common good, promulgated by him who has care of the community" (I-II, q. 90, a. 4). It is said:

1. Ordinance, that is, a disposition or direction to an end through proportionate means.

2. Of reason; concerning this, observe: by the consent of all, both reason and will concur in constituting law; but it is disputed whether law or command is formally an act of reason or of will.

Some teach that it is formally an act of the will, although of a will ruled by reason, because it belongs to reason, even practical reason, only to judge. But the concept of judging excludes the concept of commanding or imposing something. Added to this is that the Sacred Scriptures continually speak of the divine will, never of the divine reason, as needing to be fulfilled. Others with St. Thomas (I-II, q. 90, a. 1; q. 14, a. 1) judge that law is formally an act of reason, "with an act of the will presupposed, however, in virtue of which reason moves through command to the exercise of the act" (St. Thomas, I-II, q. 17, a. 1). The reason brought forward by the defenders of this opinion can be proposed thus: to command belongs to that power to which it belongs to order; for to command is to order someone to perform something. For the one commanding intentionally joins the operation to be done with the practical intellect of the subject, in other words, he imposes the work to be done. But to order formally is an act of reason.

3. For the common good. For law is not ordered to the good of one or of a few, but to the good of the whole community, that is, of all who constitute the community. Nevertheless, this does not prevent a law from sometimes establishing something which directly yields to the good of the prince or of some persons, provided that good is ordered to the common good. Nor does it prohibit a law from being made for a determinate class of persons, for example for soldiers, because a law of this sort can regard the common good, or the good of the whole community (St. Thomas, I-II, q. 90, a. 2; St. Alphonsus, I, 140).

4. By him who has care of the community. For "law properly, first and principally, regards order to the common good. But to order something to the common good belongs either to the whole multitude, or to a public person who has care of the whole multitude; and therefore to establish law belongs either to the whole multitude or to a public person who has care of the whole multitude; because also in all other matters to order to an end belongs to him whose proper end it is" (St. Thomas, I-II, q. 90, a. 3).

5. Of the community. But a perfect community is understood primarily, that is, one which, with respect to its end and the means ordered to that end, is not directly subordinated to another community. Such are the community of the whole human race, the Church, and the civil State. An imperfect community is one which is directly subordinated to another community. Such are a diocese, a religious order, a parish, a municipality, and a family. But to what extent the governors of imperfect communities enjoy legislative power will be explained in n. 107.

6. Promulgated. Several things must be noted concerning promulgation.

a) Notion of promulgation. Promulgation is the authentic intimation of a law to the community as such; authentic, that is, made by the legislator himself or by another in the name of the legislator. It must be done by the legislator or in his name, because it belongs only to the governor of the community to apply law to the community.¹

Promulgation differs: 1. from the divulgation of law, by which, namely, the law is published in several places; 2. from knowledge of the law, by which the law is known in fact. Nevertheless, knowledge is required in order that someone be obliged here and now.

It is disputed whether promulgation pertains to the essence of law (cf. St. Thomas, I-II, q. 90, a. 4);² but the dispute is not practical, because promulgation is at least required in order that law may oblige. This we shall now explain.

b) Necessity of promulgation. Promulgation is necessary in order that a law enjoy the force of obliging. For law holds itself "by way of rule and measure; but rule and measure are imposed by the fact that they are applied to those things which are ruled and measured. Hence, in order that law obtain the force of obliging, which is proper to law, it must be applied to human beings," understand: to the community, "who ought to be ruled according to it" (St. Thomas, I-II, q. 90, a. 4; St. Alphonsus, I, 89). But it is applied to the community through promulgation. Hence one who knows from some other source that a law has been made is not bound to observe it before it has been promulgated (St. Alphonsus, l.c.). And in at least that sense it is declared: Laws are instituted when they are promulgated (can. 8, § 1).

c) Mode of promulgating a law.

a) Of itself, an act placed by the legislator or in his name suffices, from which, morally speaking, the law can come into the knowledge of the community. This is clear from the practice of legislators; likewise from the fact that pontifical laws are promulgated by the very fact that they are inserted into the official commentary (n. 91). Therefore an act is not required by which, morally speaking, the whole community immediately comes into knowledge of the law. It also does not matter which act of promulgating is chosen, provided such an act is employed from which knowledge can be diffused among the members of the community. Hence a law can be promulgated either by affixing it in a public place, or by announcing it by the voice of a herald, or by inserting it into public tablets, or by explicitly or tacitly signifying that a divulgation already made, for example through newspapers or periodicals, is to be held as promulgation.

b) How diverse laws have in fact been promulgated or are promulgated, see, with respect to the positive divine law, n. 80; with respect to ecclesiastical laws, n. 91; with respect to civil laws, n. 91.

Corollary. As soon as law has been promulgated, it obliges of itself all members of the community in first act, as it is said; as soon as, after promulgation, it is known to someone, it obliges him in second act or subjectively.

¹ In Holland, civil laws, adopted by the Assemblies of Deputies and sanctioned by the King, are promulgated by the King (Grondwet, art. 121).

² Cf. Billuart, De legibus, diss. 1, a. 3.

II. Acts of law. Four acts of law are enumerated by St. Thomas, namely: to prescribe, to prohibit, to permit, and to punish. To these, by others, is added to invalidate (cf. the words of the holy Doctor, n. 62).

III. Difference between law and precept. Law and precept differ:

1. By reason of the end. Law essentially tends to the common good, but precept can also be ordered to private good alone.

2. By reason of the author. Law cannot be made except by one who enjoys the power of jurisdiction.¹ A precept can also be imposed by one who has either dominative power, as a father, or economic power, as a master.

3. By reason of the subject. Law is essentially made for a community, or for such a class of persons as offers a sufficient foundation both for the essential end of law, which is the common good, and for its perpetuity (St. Thomas, I-II, q. 96, a. 1), for example for merchants, soldiers, clerics, etc. A precept can also be imposed on a particular person or particular persons, or on a particular class of members of the community; and on the whole community, but not forever.

4. By reason of place. Law, if it is made for a local community, is generally territorial, that is, it directly affects the territory, and the members by means of the territory, so that it does not bind them when they are staying outside it. I have said generally, because an ecclesiastical legislator, not only the Supreme Pontiff, but also a bishop,² can impose laws on a local community which are also personal; but personal laws also bind subjects staying outside the territory. Nevertheless, a law made for a local community is presumed territorial, not personal, unless something else is established (can. 8, § 2). Likewise a civil legislator can make some laws which oblige even outside the territory; for the common good requires this. Thus, for example, the law of military service also binds those who are staying outside the kingdom, unless they can and wish to renounce the right of their homeland. A precept generally directly affects the subject, so that he is bound by it everywhere. Hence the saying: Law affects the territory, but precept clings to the bones.

5. By reason of duration. Law by its nature, or of itself, is perpetual, so that it endures when the life or office of the legislator has ceased. The principal reason is that law is ordered to the common good, which of itself is stable; precept is ordered to the good of a private person, which easily changes. "Precepts," as canon 24 says concerning ecclesiastical superiors, "given to individuals, urge those to whom they are given everywhere, but cannot be judicially urged and cease when the right of the one prescribing has been dissolved, unless they were imposed through a legitimate document or before two witnesses." Moreover, a precept, when the life or office of the one prescribing has ceased, endures as if per accidens if it has been confirmed by a higher superior who has not yet finished life or office. Finally, judges give a definitive sentence.

¹ Nevertheless, not every person enjoying such power can make laws (n. 106).

² That this faculty belongs to a bishop is deduced with sufficient certainty from can. 8, § 2; likewise from the fact that travelers are said in can. 14, § 1 to be bound by the personal laws of their territory, from which they are absent; certainly, from the obvious sense, also by the personal laws of the bishop of their territory.

IV. Difference between law and other things which present the appearance of law. Law differs:

1. From a decree, which is made by public power, not insofar as it is legislative, but insofar as it is executive.

2. From a judicial sentence, which is the application of law to a particular case.

3. Finally, law, insofar as it is taken for a prescriptive or prohibitive ordinance, differs from counsel. "This is the difference between counsel and precept, that precept imports necessity, but counsel is placed in the option of him to whom it is given" (St. Thomas, I-II, q. 108, a. 4). These things are also to be applied to prescribing and prohibiting law, which likewise import necessity.

Question. On what communities can law be imposed?

Response. It can be imposed on the Church and on the civil state, as follows from what has been said (n. 74); likewise, as was explained in the same place, on a certain class of persons; likewise on a diocese and an entire order or congregation, as practice itself also proves. It is doubtful whether it can be imposed on a religious province, a parish, and a religious house; these things are difficult to determine accurately.

(Summa Theologica, I-II, qq. 90-92.)

Definition.—Law is an ordinance of the reason for the common good promulgated by him who has authority in the community.

(a) It is an ordinance, that is, a command or prohibition which has obligatory and lasting force. Hence, advice is not a law, because not obligatory; a rule that binds only during the lifetime of the lawgiver or of those who received it is not strictly a law, because not enduring.

(b) It is an ordinance of the reason, since the rule and standard of human acts is reason (see 64 sqq.). Hence, the arbitrary will of a ruler commanding what is against reason would not be law, but rather iniquity.

(c) It is made for the common good, that is, it must tend to promote, directly or indirectly, general happiness, which is the end of society. Hence, the commands of a tyrant which benefit a few at the expense of public peace and prosperity are not truly laws.

(d) It is made by him who has authority, that is, by the person or persons who have the lawmaking power according to the form of government. Hence, the decisions of an advisory body or the decrees of a usurper are not laws.

(e) It is made by the proper authority in a community, that is, as here understood, in a self-sufficing community, which has its own means for attaining its end and is independent in its own order of other societies. Hence, the regulations made by parents for their family are not called laws, since the family is not a self-sufficing society.

(f) It is an ordinance that has been promulgated, that is, brought to the notice of those whom it binds. Hence, a law that has been drawn up but not published as such, is not obligatory even for those who know of its existence. A law becomes obligatory, however, as soon as it has been promulgated, and the presumption then is that the law is known; but he who is inculpably ignorant is not guilty of formal sin if he breaks the law.

1. A bishop, in a diocesan synod, reserved to himself for the future some sins and some censures. After the bishop had died, the chapter, the see being vacant, ordered this reservation of cases to be printed, so that it might come to the knowledge of all confessors. It placed this title on the folio, edited and printed: Cases and Censures in the Synod of N. Diocese, held in the year 1637. It was doubted whether that reservation had sufficient force.

Q. 1. What is law? 2. What as to the case?

R. To the first, cf. I. M. 166 seqq. To the second: Cardinal De Lugo, Resp. Mor., l. 1, d. 21, thus resolved this case: "I inclined more to the opinion denying the value of that reservation.... I am moved..., namely because the chapter did not seem to use its own authority for promulgating that reservation and inducing its obligation. For it did not signify that it reserved the absolution of those cases, nor did it say that it supplied the authority which, the bishop having died before promulgation, he did not have; but it only caused those cases to be printed as having been reserved by the bishop in diocesan synod, the proper authority of the chapter, the see being vacant, not being interposed, but only the diocesan synod with the bishop being commemorated. Therefore, since the authority of the bishop had already expired, the obligation of law could not begin when the legislator can no longer command and oblige. For I suppose that before promulgation a law is not a law, except inchoatively; nor is promulgation merely a condition or application of a law already preexisting, but rather it is a constitutive part of the law itself in the character of law.... And whatever may be the case concerning this, nevertheless it must be admitted that promulgation, required for the obligation of law, is not promulgation through private knowledge which individual subjects may have about a law already made, even if the greater part of the subjects had that knowledge; but it ought to be public knowledge, that is, arising from a solemn act by which, at the command of the Legislator, the law is published, as the doctors commonly note. But the reason from what has been said is that the act of commanding, such as law is, includes a speech by which the Prince or Legislator commands and manifests his will to the subjects, which happens when the law is promulgated. But promulgation cannot be the speech of the Prince except by command and authority of the Prince. Therefore, since the dead bishop can no longer speak to the subjects, or command, it follows that promulgation made by the chapter alone cannot be made in the name of the bishop, nor receive authority from the same bishop; therefore that promulgation is not sufficient for inducing obligation, since through that promulgation no superior speaks and commands. Nor does the dead bishop, who now can neither speak nor command. Nor does the chapter, which, although it could command, nevertheless does not signify that it commands, nor interposes its own authority, but that of the bishop alone, now dead. Therefore the promulgation required for obliging was lacking, namely promulgation made by the Superior himself, commanding through that same promulgation."

2. "Caius, a counselor of great name and no less wealthy, had understood that in the last assembly it had been decreed that the value both of ducats and of grain would be diminished, while on the contrary the value of another certain silver coin would be raised. Wherefore, thinking that he should use the opportunity of time and of this private knowledge, one or two days before the aforesaid Constitution was solemnly promulgated, he asked from a certain Jew a notable sum of that species of silver coin, in place of which he gave him ducats and grain. After some days, the promulgation of the aforesaid Constitution having already been made, he came to the confessor, having ingenuously confessed that he had notably deceived a certain Jew, and asked to know whether on account of this he had sinned, or had incurred an obligation of restoring."

Q. 1. Is promulgation of a law necessary for its obligation? 2. What will the confessor answer to Caius asking?

R. To the first, affirmatively. For promulgation is the act by which a law is exhibited and shown to the subjects. Whence it is also clear that, although promulgation is necessary for the obligation of the law, it nevertheless does not pertain to its essence. For the essence of law consists in this, that it is a rule of morals; and promulgation is not regulating, but only showing the rule. Cf. I. M. 166, 167.

To the second: "Caius, by force of this deed, at least speaking in itself, did not sin, nor did he contract any obligation of restoring.... The reason is that, since, at the time of this exchange made, the ducats and grain were truly in their former value, it is certainly clear that Caius, by giving gold and grain for silver, repaid an equivalent. Granted even that he is supposed to have known that the grain would at once be of lesser value after the promulgation, nevertheless because this promulgation had not yet happened, nor was Caius otherwise obliged to intimate it to the Jew, hence he inflicted on him no injury at all, but wisely used his right in order to avoid the damage which he foresaw was threatening him from retention of the ducats and grain.

"Nevertheless I said that Caius, in this deed, speaking in itself, did not sin. For from the manner of accusing, he seems to have insinuated quite clearly that at least from erroneous conscience he sinned gravely: for deception of one's neighbor in grave matter is not free from grave fault. Therefore since Caius thought that he was deceiving, indeed willed gravely to deceive, the Jew, it seems practically certain that he sinned gravely, although he is no longer held to rescind the contract, nor to restore anything to the Jew, because, according to what was just said, the contract was truly just." Elbel 257, 258; G. 89, 90. Cf. I. M. 1147.

3. Epipodius the theologian and Thiphonius the canonist, conferring with each other, sharply dispute about the promulgation of pontifical law. The former contends that it is enough if its promulgation is made at Rome, or in the principal city of the whole world, so that it has force for obliging all the faithful. But the latter contends that promulgation must be made in the individual dioceses, to manifest knowledge of it to all of them. For Rome is very distant from the greater part of the dioceses of the whole world.

Q. 1. How and where must laws be promulgated? 2. In order that pontifical laws oblige, must they be promulgated not only at Rome, but also in each diocese by its own bishop?

R. To the first, cf. I. M. 168, 169. To the second: first, negatively, if it is a question of Pontifical Constitutions concerning a matter of faith and morals. The reason is that they are not new laws, but mere declarations of natural and divine law, already sufficiently promulgated before.

Secondly, affirmatively, if it is a question of disciplinary laws, and promulgation of this sort is established in the law itself, as in the Tridentine Decree, session 24, ch. 1, De Ref., concerning the nullity of clandestine marriage. The reason is that the mode of promulgation depends altogether on the will of the legislator.

Thirdly, if it is a question of the same laws, and nothing is had in the law concerning a special promulgation to be made, "the first opinion affirms, and several grave authors hold this.... But still, according to this first opinion, Bulls inserted in the Bullarium must be excepted, because these are already the Body of laws; and in this all agree, as Cardinal Petra testifies.... But the second opinion, very common and more probable, denies it.... When the Apostolic See wishes some law not to oblige except after publication made in the provinces, it expresses this.... When the Pontiff establishes that his Bulls be published only at Rome, it is by no means likely that he intends to oblige not the other provinces, but only the Roman province. When the Pope wishes to bind only Romans, he is accustomed to issue particular Edicts.... But making statutes for the whole Church, and promulgating them solemnly with obligatory clauses, he is without doubt presumed to wish to oblige all the faithful as soon as knowledge has reached them.... This is clearly deduced from c. 1, Ad haec de Postulat. Praelat..... The same is sufficiently inferred from c. Quia cunctis 1, § Nec obstaret, De Concess. praeb. in the Sixth.... But what gives more force to our opinion are two clauses.... One clause speaks thus: 'But in order that the present letters may more easily come to the knowledge of all, and that no one may be able to allege ignorance of them, we will that they be affixed to the doors, etc., and published, and that, thus published, they bind and affect all and each whom they concern, just as if they had been personally intimated to each one of them.' The other says: 'But we will that to transumpts of the present letters, even printed ones, subscribed by the hand of some public Notary, and fortified by the seal of a person constituted in ecclesiastical dignity, the very same observance everywhere be applied, both in judgment and outside it, as if they had been exhibited or shown to each one.' But these clauses show too plainly that the mind of the Pontiff is to wish to bind all the faithful to statutes of this sort independently of their publication in individual Provinces. And Sylvius and Roncaglia, although they admit the first opinion as probable, nevertheless hold as certain that all Bulls promulgated at Rome with the aforesaid clauses oblige in themselves without another promulgation. Moreover, Roncaglia rightly says that from the reported words of such clauses a firm argument can be adduced for the probability of the first opinion with respect to those Bulls where the aforesaid clauses are lacking: for nothing in laws is to be supposed placed in vain, and those clauses would be altogether superfluous if all Bulls, published at Rome even without such clauses, obliged before any other publication in the Provinces.... Furthermore Suarez and others probably say that pontifical laws which invalidate some contract valid by its own nature... or which take away jurisdiction, for example, in the sacrament of penance, concerning these we can benignly interpret the mind of the Pontiff to be that he does not wish them to have effect unless after they have been promulgated in the dioceses; otherwise they would redound to the detriment of many, who would be invincibly ignorant of them." Lig. l. 1, n. 96.

This latter opinion seems altogether truer from the fact that a response was given by the Sacred Penitentiary, 8 November 1821, that the Constitution Ecclesiae of Pius VII, and on 15 June 1870, the Constitution Apostolicae Sedis of Pius IX, oblige on the day after its publication made at Rome. It is confirmed from the very recent Constitution Officiorum of Leo XIII concerning the prohibition and censure of books, which the Supreme Pontiff wills to be inviolably observed by all, and which indeed is to be observed by all after the promulgation already made at Rome.

Fourthly: "Not only Pontifical Constitutions which have been solemnly promulgated induce the obligation of law, but also all others which, from the use and consent of the universal Church, for several centuries now are held as sufficiently promulgated and authentic." St. Alphonsus l. 1, n. 105, 106; Struggl. tr. 3, q. 1, n. 21, 22.

Fifthly: "It is special in censures that, for their obligation, it is required that they be published not only at Rome, but also through the prelates of places. C. Cum infirmitas 13, De Poenit. et Remiss." Thus Engel, l. 5, tr. 39, n. 122. But the disposition which is contained in the aforesaid chapter can be held as a special disposition for a special matter. For it is a question of physicians called to the sick, who must before all things induce the sick person to confession. Moreover in the Constitution of Pius XI, Apostolicae Sedis, IV Id. Oct. 1869, by which censures latae sententiae presently in force are established, this special disposition is not had, and that Constitution is in force everywhere. - G. 92 seqq.; Elbel 254, 256.

4. Flavius, a cleric, on account of grave negligence committed in the care of souls, having been denounced to his Ordinary and found culpable, was condemned to perform spiritual exercises for eight days in a certain monastery, and to give fifty lire to the same monastery by way of alms. This latter Flavius in no way performed. As for the former, during that entire eight days, he did not make even one meditation, saying that mental prayer is a merely internal act, which cannot be commanded by a human superior. Hence he neglected all the other spiritual exercises, content only to dwell in the monastery for eight days, which he spent reading profane books and newspapers.

Q. 1. Can merely internal acts be the object of law and precept? 2. What concerning Flavius?

R. To the first, cf. I. M. 117. To the second: the bishop altogether legitimately condemned Flavius to the aforesaid penance, the proportionate gravity of the fault being supposed. For although the bishop in words, in his sentence or mandate, did not express that he wished to oblige Flavius gravely, nevertheless by the fact he must be judged sufficiently to have expressed it, from this, that any superior, speaking regularly, must be presumed to have wished to oblige according to the capacity of the matter. Hence, Flavius, by omitting to give to the monastery the alms of fifty lire, sinned gravely; because when matter commanded by a superior is divisible into several parts, and those parts in themselves constitute grave matter, the neglect of any part is grave sin. - But besides, Flavius sinned gravely because of the omitted spiritual exercises, which also themselves constitute grave matter. Nor indeed does the reason of Flavius avail anything in the case; because spiritual exercises do not consist in merely internal acts, or in mental prayer alone, but in several acts at once internal and external: in withdrawal from all secular business and profane actions; in pious readings; in conferences with the spiritual Father, or confessor, or director of the exercises; in due preparation for meditation, after first hearing or reading over the various points of meditations; in meditations and examinations of conscience, on bent knees at least for some space of time; in vocal recitation of prayers; in visits to the Most Holy Sacrament, etc. All these, as is clear, are mixed acts, which without doubt can be commanded by human authority. - Elbel 339-341; G. 95, 96; Lugo, Resp. Mor., l. 6, d. 7.

What is law? - Law is the rule of human actions in order to their moral honorableness or shamefulness. But if law is taken strictly, it is not the only rule. For human actions can also be regulated by counsel and by precept. Counsel is direction from a teacher, friend, or equal, or even from a superior, but by no means insofar as he is superior. - Precept is also usually called law, from its proper act, which is to command. But a precept, as distinguished from law, is a rule imposed by a superior, insofar as he is superior, not on the whole community, but on a particular individual, one or several. - Finally, law is a rule imposed on the whole community. Therefore counsel directs, but does not oblige; but law and precept direct and oblige. S. Th. 1. 2. q. 90. a. 3.

If the question concerns the name, law has been called this indiscriminately from reading or from binding. From reading, because in it what is the will of the superior is read, or known; from binding, because the physical will of the subject, although after the law it remains physically free as it was, nevertheless remains morally restricted, so that it cannot morally act honorably if it departs from what is prescribed by law. - If the question concerns the thing, it is defined variously by various authors. But commonly the definition of S. Th. 1. 2. q. 90. a. 4 is received: "An ordinance of reason for the common good, promulgated by him who has care of the community." Ordinance; for to order is to constitute something in its due place. But this is what law does: certainly law commands, prohibits, authorizes, permits, punishes. L. 7 de Legib. Doing these things, it constitutes human acts and actions in their due place with respect to the end to be obtained, which is the common good. Of reason: ordinance can be taken actively and passively. Law is active ordinance; but reason is what knows how to distinguish between place and place, between due and undue place. Of reason, namely inducing obligation; for law is a command. Whence it is both of reason because it is an ordinance, and an act of the will because it has the force of obliging. S. Th. 1. 2. q. 97. a. 3. For good; for if it were not such, it would no longer be an ordinance, but a disorder. - "Those who preside over the others preside for this one reason, that they may protect the utility of the state." Enc. Leo XIII, Immortale Dei, Nov. 1, 1885. - Common; in this law is distinguished from precept, which is imposed on individuals: for the common good does not regard this or that, these or those particular individuals only, but regards all; and therefore individual persons too, not insofar as they are individuals, but insofar as they are members of the community. But law is imposed on all, either absolutely all, for example all citizens, or all of some order, who specially apply themselves to the common good, for example all soldiers, who fight for the safety of the people, Can. 2. Dist. 4. This common good is the order, peace, and prosperity of society. By him who has care of the community; namely by the legitimate Prince of a perfect community, which is capable of political governance. In this, again, law is distinguished from precept and counsel. A precept is also given by one who has only private authority, as father, husband, master. Counsel is also given by one who otherwise does not enjoy authority. - Has care; that is, who presides over the community by his jurisdiction, or public authority. Hence law can be neither above nor beyond the jurisdiction of the Prince. - Promulgated; for law obliges rational beings precisely insofar as they are rational, namely insofar as they operate in a rational mode. Therefore in order that it oblige it must be known; but in order that it become known it must be brought forth externally by the legislator, and not in any way whatever, but solemnly or with some public solemnity: namely it must sufficiently become known to all that this is the mind and will of the legislator, and indeed on the part of the legislator himself. Sufficiently become known, that is, by certain knowledge; otherwise a rational being would be altogether unjustly despoiled, from the uncertain will of the legislator, of the natural and greatest good of liberty, which he certainly possesses. For there is no equality between certain liberty and uncertain obligation, that is, between the most certain and most just dominion and possession of the greatest good, and the uncertain and doubtful spoliation of that good. Hence S. Alph. says: "In order that law oblige, it must not only be promulgated, but also promulgated as certain." - Dist. 1. C. 3, Dist. 4. C. 3; S. Th. 1. 2. q. 90. q. 92, De Verit. q. 17. a. 3; L. 90 seq.; E. M.

He who sins against a precept, of itself sins only against obedience owed to his superior. He who sins against a law, besides this, sins also against that virtue to which the law is referred because of the public good in such matter, and against the public good itself, which is referred to legal justice. Cf. n. 835.

You will resolve: Private knowledge of a law without promulgation does not suffice for obligation. But promulgation, as soon as it has been sufficiently made, without knowledge of the law, suffices for obliging in the external forum, because knowledge of a law duly promulgated is rightly and deservedly presumed by the judge. Hence the Rule of Law: Ignorance of fact, not of law, excuses. R. 13 de R. I. in 6. But in the internal forum, besides exterior promulgation, knowledge of the law is always required; because no one can sin without cognition of the obligation. - C. Ad haec 1 de Post. Prael.; C. A. 2; S. Th. 2. 2. q. 77. a. 3 ad 4; Lugo Resp. Mor. Mor. l. 1. d. 21; Wirceburg. c. 1. a. 1, c. 4. a. 1.

How, and where, are laws to be promulgated; when do they begin to oblige? - Nothing is defined by natural right. Therefore it is in the choice of the legislator to promulgate it in the mode and place constituted by him. Civil laws are regularly promulgated by their insertion in the official gazette. C. I. preliminary disposition 1. - Canonical laws are promulgated at Rome, by placing their copy at the doors of the Vatican Basilica and of the other Roman Basilicas which are usually named; or by exhibiting it in the Secretariat of the individual Congregations, and then publishing it, or by transmitting them to all Bishops. The Acta Sanctae Sedis were declared authentic and official for publicly publishing the acts of the Holy See. Nor indeed is it necessary that they be published also in individual dioceses by the Ordinaries of the places. S. Poenit. Nov. 8, 1821; June 15, 1870. Thus matters were previously. But now from the Constitution Promulgandi of Pius X, Sept. 29, 1908, all Pontifical laws published in the official Commentary on the Acta Apostolicae Sedis are held as legitimately promulgated, unless in some particular case it has been otherwise established by the Supreme Pontiff. E. M.

Diocesan laws are promulgated either in Synod, or by their public reading in the cathedral church, or by affixing them in some public place, or in some official Commentary. Bened. XIV De Syn. l. 13. c. 4. n. 1. But after the law has been promulgated, when it begins to oblige depends, as regards civil laws, on the law of each nation. From C. I. preliminary disposition 1, laws begin to oblige on the fifteenth day from their publication, which consists in the insertion of the law in the official Collection of laws and decrees, and in the announcement of such insertion in the official commentary of the kingdom, Gazzetta officiale del regno. From C. H. art. 1, they oblige after twenty days from their publication in the official newspaper la Gaceta. Cf. C. G. art. 1 and decree Nov. 5-11, 1870. As regards Pontifical laws, some think they oblige after subjects, a suitable time having elapsed, could have known them, C. 1 de Conc. Praeb. in 6; others after two months, Auth. Ut factae novae Coll. 5; others immediately when they have been promulgated from C. 1 de Postul. Praelat., from the clauses of Bulls, from the cited responses of S. Poenit. But sometimes, in the law itself, the time of obligation is determined. As regards diocesan laws, after their promulgation has been made, no determinate time is required for their obligation. C. I. at the beginning, Dispos. etc. a. 1; Decree Nov. 5-11, 1870; C. A. 2. 3; C. H. 1; L. 96. 105. 106, H. A. tr. 2. n. 8; Suarez De Legib. l. 4. c. 15. n. 11; Struggl q. 1. n. 21. 22; Bened. XIV De Syn. l. 13. c. 4; Wirceburg. c. 4. a. 1; E. M.

Does Trent oblige in those places where it was not promulgated? - It is certain: 1. that it obliges everywhere as regards faith and morals, since there is one rule of these and it is necessary for all. Nor indeed are they new laws, but mere declarations of natural and divine right already sufficiently promulgated before. - 2. That it does not oblige as regards the Decree concerning clandestine marriages, sess. 22. C. 1 de R. But concerning this matter the new Decree Ne temere, edited in the present, must be attended to. - As regards other Decrees which regard discipline, the common and to-be-held opinion affirms. For the Bull which establishes the obligation of the Council of Trent regards the whole world; likewise the Bull which determines the day on which Trent begins to oblige was given for the whole world and legitimately promulgated at Rome. B. Pius IV Benedictus Deus 1564, and Sicut ad Sacrorum 1564. - Scav. 4. n. 83, Milan ed. 1874; E. M.

Does the force of law depend on acceptance by the community? - Of itself law in no way depends on acceptance by the people in order that it oblige. Therefore law, independently of that acceptance, is in itself altogether perfect as regards the obliging force which it has. Proof. The whole force of obliging is in the superior, not in the subject. Therefore as soon as the will of the superior is sufficiently known, someone is subject to the obligation. And this is confirmed by proposition 28 condemned by Alexander VII. Of themselves, therefore, Bishops who do not accept Pontifical laws sin; civil governments of Catholic nations also sin which prohibit the laws of the Church from being accepted. These laws, notwithstanding that prohibition, retain their force of obliging. L. 96. 97. 136-138.

Accidentally, sometimes a law not accepted does not oblige, by reason of the tacit or express consent of the superior, or by reason of privilege or tolerated custom. Proof 1. from the common consent of theologians. 2. Because the whole force of obliging is in the superior. Therefore, if the superior consents not to oblige, in whatever way he consents, the law will no longer oblige. Therefore, if the greater part of the people has not accepted the law, and the Prince knowingly and willingly does not urge it, although those who first did not accept the law sinned, nevertheless the others are without fault because of the presumed consent of the superior. Not accepting: namely contrarily by breaking the law, with a will not to observe it. For if the greater part has not accepted the law merely negatively, that is, because of a reasonable cause suspends its obligation for a time, until that cause is manifested to the superior, meanwhile prepared to obey if the superior urges the obligation, then not even the former sin. From a certain benign interpretation, the obligation of the law can be held as suspended until the matter is settled. Knowingly and willingly: for if the Prince does not know that it is not received and not brought into use, or cannot contradict at the beginning, the obligation of the law endures until the time required for prescription elapses, and a legitimate custom is formed. Nevertheless, "if you are prepared to receive a promulgated law and, given the occasion, even observe it, but most others from the community do not receive it and do not seem likely to receive it, then at least you will be excused from it by discretion," L. 137, or rather because of the presumed will of the superior, who does not wish to oblige you alone. - Suarez De Legib. l. 3. c. 19. n. 5, l. 4. c. 16. n. 8; Vazquez on 1. 2. d. 156. c. 5. n. 40; L. 139; Struggl q. 1. n. 27-30; Laymann cap. 3. n. 3; Bened. XIV De Syn. l. 9. c. 8; Wirceburg. c. 4. a. 2; E. M.

What are the properties of law? - They are the following:

1. Possibility, namely even moral possibility: that is, that it not bring grave or most grave inconvenience and difficulty, at least commonly speaking, and in the case of positive law. The reason is that since law is an ordinance of reason, it too must be ordered. Now it is imprudent and rash to pour out life and other goods which can be preserved thereafter for better use, excluding the case of the common good, contempt of God, or violation of a negative law. Moreover, since law again is an ordinance of reason, and therefore ought itself also to be ordered, it must be accommodated to the common condition of men, so that it can morally be observed by the whole community or at least the greater part of it; otherwise it would be useless, indeed harmful, to make the law. To exercise all acts of virtues, even heroic ones, certainly is not for all. And this is confirmed from the very practice of each Law, ecclesiastical and civil, and from the consent of all theologians, asserting that divine positive and human law generally do not oblige with proportionate grave harm which is accidentally joined to the observance of the law. - S. Th. 2. 2. q. 79. a. 3 ad 2, q. 96. a. 2; Sanchez on Decal. l. 1. c. 18. n. 2. Appositely S. Th. 1. 2. q. 96. a. 2: "Human law is laid upon a multitude of men, in which the greater part is of men not perfect in virtue, and therefore by human law not all vices are prohibited, but only the more grave ones, from which it is possible for the greater part of the multitude to abstain, and especially those which are to the harm of others, without whose prohibition human society cannot be preserved." - Wirceburg. c. 4. a. 5.

Hence heroic acts generally cannot be commanded by law, because they are judged morally to exceed human powers, and therefore a law of this kind would lack that quality by which it could be called possible. Nevertheless sometimes, when the common good requires it, they can be commanded, because in any perfect society there is the right and power for its own preservation. Thus watch-soldiers cannot desert their post, even when danger of life threatens, if the republic would suffer damage from it. Thus also law obliges with danger of life, if souls would perish unless the pastor goes to the sick in time of plague. When the common good requires it, namely if that precept is necessary for conserving a good or averting a common evil. - This, however, must not be understood of those laws which are made from the given hypothesis of some peculiar state into which the subject has voluntarily cast himself, which they therefore call hypothetical, adventitious, or elective. Thus the Church commands perpetual enclosure to nuns. Thus also most grave punishments can be imposed on men guilty of a most grave crime. For it was free to them to withdraw themselves from those things by acting otherwise. L. 175; Struggl q. 2. n. 8; Suarez l. 3. c. 30. In the case of positive law: for negative laws, namely those which forbid evil by natural right, must be observed even with the danger of life. For evil is never to be done. But except laws commanding a thing which by its nature cannot be performed without grave inconvenience, such as the law of Confession, for which the help of grace is at hand, and from which impossibility also excuses. But positive laws, the more they look to the good of religion and of the republic, the more they oblige with greater inconvenience. - E. M.

2. Honorableness; for law is an ordinance of reason. Therefore law cannot command dishonorable acts; it can however command acts indifferent per se, which can be ordered to the common good, and which consequently become positively honorable. A law will be honorable if it agrees both with religion and reason. - Struggl q. 2. n. 9; Elbel 252-254; S. Th. 1. 2. q. 95. a. 2. 3, q. 96. a. 2.

3. Utility; for law is an ordinance of reason for the common good by him who has care of the community. Hence any law cannot command any honorable acts whatsoever, but all and only those acts whose placement or omission can contribute to the common good of society, namely so that either immediately and directly, or at least mediately, indirectly, and ultimately, it yields to the common good. - Therefore civil law certainly cannot command merely internal acts. Nor can ecclesiastical law, more probably according to many, do this, because the legislative power of the Church in the external forum pertains only to the external governance of the faithful. C. 34 de Simon., S. Alph., S. Th., Suarez, Bened. XIV, etc., against others, who also probably affirm it, because the Church received unlimited power from Christ. - But human law can command mixed acts, or acts partly internal, partly external, which together constitute one moral act; and external acts even if hidden, for both the former and the latter acts can be directed to the common good. "And thus externalized heresy is prohibited under excommunication, although hidden; thus under irregularity hidden homicide." L. 100. S. Th. 1. 2. q. 91. a. 1, q. 96. a. 1. 3, q. 100. a. 9, 2. 2. q. 104. a. 5; Suarez l. 4. c. 12. 13; Ithur. Cas. 41. n. 23; Bened. XIV De Syn. l. 9. c. 4. n. 4; Wirceburg. c. 4. a. 3.

4. Justice; for again law is an ordinance of reason, and "in human matters something is said to be just from the fact that it is right according to the rule of reason." S. Th. 1. 2. q. 95. a. 2. "But laws are said to be just both from the end, namely when they are ordered to the common good; and from the author, namely when the law enacted does not exceed the power of the one enacting; and from the form, namely when burdens are imposed on subjects according to equality of proportion in order to the common good. For since one man is part of the multitude, every man, this very thing which he is and which he has, belongs to the multitude, just as every part, that which it is, belongs to the whole; whence nature also inflicts some detriment on the part, so that it may save the whole. And according to this, laws of this kind, proportionately imposing burdens, are just and oblige in the forum of conscience, and are legal laws. But laws are unjust in two ways: in one way by contrariety to human good, contrary to the aforesaid things; either from the end, as when someone presiding imposes burdensome laws on subjects, not pertaining to the common utility, but rather to his own utility or glory; or also from the author, as when someone makes a law beyond the power committed to him; or also from the form, for example when burdens are distributed unequally to the multitude, even if they are ordered to the common good. And such things are rather acts of violence than laws.... Hence such laws do not oblige in the forum of conscience, except for avoiding scandal or disturbance, on account of which also man ought to yield his right.... In another way laws can be unjust by contrariety to divine good, as the laws of tyrants inducing to idolatry, or to any other thing which is against divine good; and such laws it is in no way licit to observe." S. Th. 1. 2. q. 96. a. 4. A law will be just if it is accommodated to the powers of the subjects, although hard for individuals. L. 12 Qui et a quib. manum.; Suarez De Leg. l. 3. c. 21.

5. Stability; because custom, which cannot be had without stability of law, has very great force for the observance of laws; and because the common good is not so easily changed from day to day. For this reason law is constituted without a defined time, so that once enacted, unless it is abrogated, or becomes harmful or useless, it endures as long as the community stands to which it is imposed, or as long as the circumstances persevere for which it was enacted. - What is indeed constituted generally, but not in perpetuity, has the name of Statute, Edict, Decree. Nevertheless those things which are established by supreme civil power, although they are only certain simple ordinances, are presently called laws. Likewise those things which are constituted by Synods and commanded by Sacred Congregations are called Synodal Statutes and Decrees of Sacred Congregations. - S. Th. 1. 2. q. 96. a. 1, q. 97. a. 1. 2.

Hence law can cease only in three ways: 1. Through abrogation or derogation, according as it is abolished altogether or only in part. L. 102 de R. I. For just as a superior can make a law, so he can take away or restrict the same. And here it must be noted that by a general law a particular law of some place is never of itself abrogated, unless this is expressly or equivalently provided in it; nor is a particular custom abrogated, which the Prince is presumed to be ignorant of, since it is a matter of fact and consists in fact: namely unless the clause is added, notwithstanding any custom whatsoever, or, if it exceeds the memory of men, notwithstanding any custom whatsoever, even centenary and immemorial. On the contrary, because universal customs are presumed to be known to the Prince, they must be said to be abrogated by that very fact that the Prince enacts a contrary law, even if a general derogatory clause is lacking. And the same must be said of a universal law. But Bishops by their laws abrogate any particular custom whatever, because they are presumed to have full knowledge of the customs of their dioceses. C. Licet 1 de Const. in 6; C. I. beginning, Dispos. etc. a. 5; C. H. 5; L. 109. 199. Cf. l. 6. n. 680.

2. Through cessation of the adequate motive cause, or the total end, on account of which it was enacted, with respect to the whole community; for when the cause of the law ceases, the legislator cannot reasonably urge it. And thus a precept also ceases if its end wholly ceases. S. Th. 1. 2. q. 103. a. 4 ad 3. - 3. Through desuetude, or through contrary custom clothed with the due conditions; for then at least the legal consent of the superior accedes. - Wirceburg. De Legib. c. 5. a. 5. 6.

This stability is a property exclusively proper to law, if law is compared with precept. For a precept ceases by the death of the one commanding or by cessation from office; but law is not extinguished together with the legislator. For when the physical person from whom the law emanated ceases, neither does the office of making laws cease, nor does the common good cease; and for that reason the law does not cease, since that common good is the universal and constant good of the whole society. But the good which a precept regards is a private or individual good, and by its nature variable; and with the physical person of the superior, the very office of commanding ceases of itself, as may be seen in a father, master, teacher, etc. - Meanwhile, however, even a precept or mandate sometimes does not immediately expire by the death of the one mandating: namely if the mandate is for pious causes, or in favor of a matrimonial dowry or of some student; if the mandatary is expressly ordered to execute something even after the death of the one mandating; if the matter is no longer intact, namely in judgments, in donations and promulgations to be made in the name of another; if the matter is even intact, but only the execution of some grace has been mandated in favor of another, and the granting itself of the grace has not been left to the choice of the mandatary; if the mandate proceeds from one having public power, for the cause of public utility; if it has been thus provided in the law itself, as sometimes happens in religious Institutes, and then the precept obtains perpetuity by force of the law itself. - La-Croix 566. 876; Struggl q. 1. n. 5; L. 140.

6. A real law, which is concerned with immovable goods, adheres to the territory in which the immovables are situated. A real law, which constitutes the form and order of acts, also adheres to the place. The place governs the act, unless the act is altogether private. A personal law, which decrees those things that pertain to the state of persons, follows the person everywhere. A moral law, commanding or prohibiting a human action, immediately affects the territory, and is called a local law, to distinguish it from real and personal law; while a precept immediately affects the person. C. 2 de Const. in 6; C. I. preliminary disposition a. 6 seq. But in reality every law is properly local. For law regards the common good, namely the good of the community, which exists only in a determinate territory; whence it obliges a person only as existing in the territory, at least by fiction of law. Law obliges only subjects, and they are not subjects except in the proper territory of jurisdiction. But a precept regards the private good of the person; whence wherever he is, the precept urges. And this is certain and common if the question concerns a commanding superior directly having authority over the person, as a husband, father, master, regular prelate. But if the question concerns a superior directly having jurisdiction in the community and in the territory, the more common opinion affirms, while the less common opinion and one probable to S. Alphonsus denies. Nevertheless the more common opinion, according to prevailing practice, must be held; and consequently the precept endures until it is revoked, if it was made with legitimate cause and legitimate form. - L. 1. 2. n. 23; Bened. XIV De Syn. l. 13. c. 4. n. 9; Wirceburg. De Legib. c. 1. a. 1.

Does a law cease when the final cause ceases only in a particular case? - R. Affirmatively, if it ceases contrarily, namely when the matter of the law would be rendered harmful in that case, or very difficult. For positive law, especially human law, does not oblige with grave and proportionate inconvenience. It is controverted if it ceases only privatively, namely if the law would then be rendered useless. The first opinion, which several grave theologians hold, affirms, because the law is then rendered useless. But the second opinion, which pleases S. Alph. more, denies, because although the end of the law ceases in the particular, nevertheless it does not cease in common. For commonly speaking there is almost always the danger of hallucination, by which someone can easily be deceived in his own case.

Hence then the law becomes founded in a presumption of law, which indeed always obliges. Nevertheless S. D. adds that if a case occurred in which "someone were altogether certain and secure that every danger of hallucination is absent," he would not dare to disapprove the former opinion, L. 199. 1. 6. n. 613; indeed S. D. calls this opinion probable, l. 3. n. 846. - But it must be noted that the end of a law can be multiple, as in the reading of prohibited books; and then, when one ceases, the law does not therefore cease. L. H. A. tr. 2. n. 69; S. Th. 1. 2. q. 103. a. 4 ad 3, 2. 2. q. 154. a. 2. 3; Struggl q. 4. n. 25-27.

You will resolve: Betrothed persons are not exempted from the proclamation of banns, even if they certainly know that no impediment underlies the marriage. For the law is founded on the danger of universal nullity of marriage from omitted proclamations. Hence also someone cannot read prohibited books if he fears no danger to himself from them. And although that danger also truly ceases in a particular case, nevertheless the end of the prohibition does not wholly cease, since that end is not only that the danger of perversion be avoided, but also that occasion not be given to depraved writers to commit harmful things to print. Likewise he is still bound by the law of abstinence and fast who abhors meats and delights in fish, and he who can sustain for his stomach only one eating in the day. - L. 199.

What is interpretation of law, and how manyfold is it? - Law is not always clear. Hence for rightly understanding it interpretation is needed, which is defined: the genuine explanation of the law according to the mind of the legislator. Mind, not hidden, but expressed by the words of the law. Mind, because law is what the legislator willed. S. Th. 2. 2. q. 120. a. 1 ad 3.

Interpretation is: 1. Authentic, doctrinal, and usual, according as it is made by the superior himself, or by learned men, or from custom. In order that interpretation be truly authentic and not doctrinal, it is necessary that the Superior, or another who has this power from the Superior, declare the law insofar as he is Superior, that is, using the power of jurisdiction. For if as a private person he declares his mind, the interpretation will not be authentic, but doctrinal. Custom is equivalent to authentic interpretation if it is legitimately prescribed; otherwise it is merely doctrinal. For custom is "the best interpreter of laws." C. 8 de Consuet. Whence "those things are by no means to be changed which have always had a certain interpretation." L. 23 de Legib.

2. Strict or broad, according as it is made strictly according to the natural property of the words, or broadly according to the more benign sense. Thus these words: sons, clerics, religious, etc., according to their natural signification can be taken strictly of natural and legitimate sons, of those initiated by first tonsure, of regulars solemnly professed, or broadly of all sons, of all ecclesiastical persons, of all religious, even novices.

3. Comprehensive or merely declarative, or extensive or restrictive, according as by that interpretation either nothing new is introduced, or something is added by it, when the words are taken either as they sound or beyond their natural sense. - C. Inter alia 31 de Sent. exc.; Sixtus V, C. Immensa, Jan. 22, 1588; S. Th. 1. 2. q. 86. a. 6; Ithur. Cas. 53. n. 2 seq.; L. 1. 3. n. 760. 265; C. I. beginning, Dispos. etc. a. 3.

What are the rules of interpretation? - The words of law are to be taken according to their proper and usual acceptance, unless something absurd or unjust follows from this, or the law becomes wholly useless. For words demonstrate the will of the one speaking. And otherwise nothing would be certain in laws. Hence the common saying: Where the law does not distinguish, neither ought we distinguish. In doubt about the true sense, attention must be given to the mind of the legislator, or to the end and reason of the law; to the thing or matter about which the question is concerned; and to the circumstances either antecedent or consequent. R. 88 de R. I. in 6. - A penal and odious law in doubt is to be interpreted strictly; but a favorable law undergoes a broad interpretation. And generally "laws are to be interpreted more benignly, so that their will may be preserved." L. 18 de Legib. L. 12. 18. 19. 23. 24. 25. 26. 37 de Legib., L. 155 de R. I.; R. I. 15. 30 in 1; L. 200; Struggl q. 4. n. 1 seq.; Suarez De Legib. l. 6. c. 1; Wirceburg. De Legib. c. 5. a. 1.

Does authentic interpretation need promulgation in order to oblige? - R. Negatively, if that interpretation is a declaration of a sense clearly contained in the law, since such a declaration is not a new law; for it establishes nothing new, but declares what has been established, and has force backward. - R. Affirmatively, if the declaration is of a sense obscurely contained in the law, because it is then had as a new law; or if it restricts or extends the law, since then it is truly a new law. - L. 100. 200, 1. 3. n. 1027; Suarez De Legib. l. 6. c. 1. n. 3.

Must a law be extended from case to case because of identity of reason? - "Penal laws are not to be extended from case to case." L. 1. 6. n. 689. For hatreds are to be restricted. R. I. 49 in 6. - Likewise invalidating laws or laws granting some right cannot be extended from case to case; for then the act lacks value, or has force only from the positive will of the legislator. C. I. beginning, Dispos. etc. a. 4. - It must likewise be denied as regards other laws, even if the same reason runs; a fortiori if there is only a similar reason. For not the reason of the law, but the will of the legislator, duly intimated to the subjects, has the force of law and obliges. For the legislator can well dispose concerning one thing and not concerning another. Hence the common axiom: The reason of the law is not the law; and the end of the precept does not fall under the precept. L. 20. 21 de Legib.; S. Th. 1. 2. q. 100. a. 9 ad 2; L. 1. 3. n. 273. But "to act contrary to the end of the law is a certain disorder, which does not seem to be excused from all fault." L. 1. 3. n. 1030. - But if it is not licit of itself to extend a law from case to case, a fortiori it is not licit to extend a privilege from persons to other persons, from things to other things. C. 27 de Praeb. in 6; Reg. 28 de R. I. in 6; L. 14. 15. 16 de Legib.

Except nevertheless whenever otherwise something manifestly absurd or inequitable would follow, and the legislator could manifestly be accused of injustice, imprudence, ignorance. Thus by the Constitution Decori of S. Pius V, nuns are prohibited from going out of the monastery, except because of a great fire, or epidemic, or the sickness of leprosy. Therefore they will also be able to go out for another similar cause, for example flooding of the monastery, collapse, attack of robbers.

But this is chiefly had in the following: 1. In correlatives, for example, between husband and wife, betrothed man and betrothed woman; whence if the husband because of the adultery of the wife is admitted to divorce from bed, the wife also enjoys that right because of the adultery of the husband; if the betrothed woman is freed from betrothal because of the long absence of the betrothed man, C. 5 de Spons., similarly he is freed because of the absence of the betrothed woman. For then the legislator, expressly willing one thing, is judged to have implicitly willed the other also. 2. In things equated by law, such as presentation, postulation, election to a benefice; eggs and milk foods by reason of abstinence. What the law disposes in these matters concerning one, it is judged to dispose the same concerning another. And thus, if the more worthy is to be elected, the more worthy is also to be presented; if eggs are permitted, milk foods also are permitted. R. I. 53 in 6. 3. In connected things, of which one cannot stand without the other. Therefore he to whom a case is committed can also compel the parties to appear. C. 5 de Off. Deleg. 4. In things contained: for in the whole the part is contained; thus he who can make a testament can also make legacies; those to whom marriage is prohibited are also prohibited betrothal. L. 16 de Sponsal.

And these things have force even if the question concerns a penal law. Nor then does the rule have force: Hatreds are to be restricted, favors broadened. For that proceeds only when the disposition of the law is extended from interpretation of congruity, not when it must be extended from interpretation of necessity, which ought not so much be called extension as mere comprehension. And certainly extension of law is of two kinds: one necessary, the other congruential. The former is altogether required for justice or rectitude; but the latter not so, but is only voluntary, because although the law can justly comprehend many other things, nevertheless a lesser comprehension suffices for the justice of the law and the property of the words, with the reason of the law also being preserved. Now the general rule about not broadening penal laws must be understood of voluntary interpretation, that is, without which the prudent disposition and justice of the law can still be preserved; not of the necessary extension of law, which is required so that justice or equity may be preserved. And thus, a heretic is irregular. Therefore also an apostate. L. 12 de Legib. - L. 200, 1. 3. n. 293. 1027; Ithur. Cas. 53.

As it is necessary to extend a law when its reason is manifest, L. 12 de Legib., so also it is necessary to restrict it when similarly its reason is manifest; because the thing itself about which the question is concerned requires restriction; because otherwise something unjust or absurd would follow; because the case is altogether rare and foreign to the mind of the legislator; because otherwise the law would become too hard and severe. L. 18. 25 de Legib.

Do the Declarations, Decisions, and Decrees of the Sacred Congregations have the force of law? - There is no doubt that they oblige in the particular cases for which they are made. C. Sixtus V Immensa. There is no doubt that they have the force of law if the strength of Apostolic firmness is added to them. Cf. Bened. XIV, C. Sacramentum Poenitentiae, or if they have been solemnly published by mandate of the Apostolic See, or if in the Church they have been universally and by the use of several years disseminated. L. 106. But all the Decrees of the Sacred Congregations have the same authority if they have been duly promulgated. Pius X, C. Sapienti consilio, July 1, 1908.

Besides the aforesaid cases, concerning particular Decrees, about which alone there can be a question, there is a threefold probable opinion. The first opinion asserts that they have the force of obliging all, because they contain an authentic interpretation of laws. - The second opinion says that they do not oblige universally. The reason is that, in order that a law oblige all, solemn promulgation of a universal law is altogether required, and simple publication of a particular Response does not suffice. - The third opinion affirms this when the Declarations are comprehensive, namely when they do not depart from the proper and usage-received signification of the words. For then no promulgation is needed, since a new law is not made, but a law already made and promulgated is only explained. But it denies this when the Declarations are extensive, namely when they depart from the proper and commonly accepted signification of the words. For then they are new laws, which require legislative power and promulgation. But even if they contain an interpretation of doubtful and obscure common law, and not a mere declaration of clear law, they cannot have the value of universal law without legitimate promulgation, or before they are brought into common practice. Cf. 176. Schmalz. Dissert. prooem. n. 373 seq.; Pichler. Proleg. n. 46; Reiffenst. Prooem. n. 130 seq.; L. 1. 1. n. 106, 1. 3. n. 760. 765. 1027, 1. 6. n. 401. 403. 556. 593. 699, H. A. tr. 15. n. 87; Bened. XIV De Syn. l. 6. c. 6. n. 4, Index of the Work v. Congregation of the Council, its prudent inconstancy in its decisions and in rendering judgments; Scav. 1. 1. n. 339. 240, Milan ed. 1874; A. S. S. v. 3. p. 563 seq.; E. M.

178 bis. Note: The most recent ordering of the Roman Curia was made by the Constitution Sapienti consilio of Pius X, July 1, 1908. In it Congregations, Tribunals, and Offices are distinguished. There are eleven Sacred Congregations, and they are the following; to each of them its own matter is exclusively assigned, the cumulation of rights in all Offices of the Holy See being abrogated.

1. Congregation of the Holy Office. It guards the doctrine of faith and morals. Therefore to it alone remains judgment concerning heresy and other crimes which induce suspicion of heresy. - To it also was devolved the whole matter concerning Indulgences, in which matter the Constitution In ipsis of Clement IX, July 6, 1669, fully remains in force. But the faculty remains intact to the Holy Office of knowing those things which concern the Pauline privilege and impediments of disparity of cult and mixed religion, besides those things which touch dogmatic doctrine concerning marriage, as also concerning the other Sacraments.

2. Consistorial Congregation. It prepares the matters to be done in Consistories. In places which are not Mission places, it constitutes new dioceses and chapters; and treats those things which pertain to the division and general governance of dioceses, and to the election of Bishops, Apostolic Administrators, and Coadjutor and Auxiliary Bishops. In naming Bishops one must adhere to the Constitution Romanis Pontificibus, Dec. 17, 1903. To it also pertain those things which regard the governance, discipline, studies, and temporal administration of seminaries. But it resolves doubts concerning the competence of the Sacred Congregations. - A section was added concerning the spiritual care of emigrants, and concerning priests themselves who emigrate. Pius X, M. P. Cum omnes, Aug. 15, 1912.

3. Congregation on the discipline of the Sacraments. To it pertains the whole legislation concerning the discipline of the seven Sacraments. Therefore to it pertain matrimonial dispensations in the external forum, dispensations of those to be ordained, and dispensations concerning the place, time, and conditions of receiving and reserving the Eucharist, and of celebrating Mass, etc. To it also belong questions concerning the validity of marriage or sacred ordination, and others pertaining to the discipline of the sacraments. Dispensations from impediments of marriage, in the form of a Brief, are granted by this Sacred Congregation, provided they are of an honorable nature, and if the dispensations themselves are subject to greater taxes. Other dispensations are given in the form of a rescript. Cf. Ord. servand. in Rom. Cur., special norms c. n. 13-16.

4. Congregation of the Council. To it is committed the whole discipline of the secular clergy and Christian people; and therefore to it pertains the observance of the precepts of the Church, except the Eucharistic fast, which belongs to the S. C. on the Sacraments; to it pertain those things which regard Pastors and Canons, those which are referred to pious Confraternities, pious works, pious legacies, Mass stipends, benefices, offices, ecclesiastical goods; to it also pertains the faculty of exempting from conditions required for obtaining benefices, whenever they are to be conferred by the Ordinary; likewise those things pertain which regard ecclesiastical immunity and the celebration of Councils. - To this Congregation is joined the special Lauretana Congregation. The faculty of interpreting the Decrees of the Council of Trent no longer pertains exclusively to the S. C. C., but belongs to the individual Congregations according to their proper competence. S. C. Cons. Feb. 11, 1911.

5. Congregation of Religious. To this Congregation pertain the affairs of all Religious, of those who live a common life without vows, and of secular third orders, whether among themselves, or with regard to them in relation to others; also dispensations from common law with religious pertain to it.

6. Congregation of Propaganda Fide. Its jurisdiction is circumscribed by regions where the sacred hierarchy has not yet been at least perfectly constituted, and the state of mission perseveres. Nevertheless those things which regard faith, marriage, sacred rites, and religious as such are to be referred to the proper Congregations. It has united to itself the Congregation for the affairs of the oriental rite, which preserves its functions entire. - To it is joined the Committee for the union of dissident Churches. Besides, the administration of all goods has been committed to it, even of the Reverend Chamber of Spoils. Indults which until now it was accustomed to grant to others, it now grants only to its own subjects. Ord. servand. in R. C., special norms c. 7. art. 6.

7. Congregation of the Index. To it pertains everything which regards harmful books and writings which are to the ruin of souls. - The Cardinals, Consultors, and ministers of this Congregation and of the Holy Office can communicate with one another all those things, and only those things, which pertain to the prohibition of books, and all are bound in this matter by the same secrecy.

8. Congregation of Sacred Rites. To it pertain all those things which proximately regard the sacred rites and ceremonies of the Latin Church, and also the insignia and privileges of honor to be granted, both personal and real, which are referred to sacred rites and ceremonies. To it also pertain those things which regard the beatification and canonization of Saints and Sacred Relics, concerning which one must adhere to the Constitution In ipsis of Clement IX, July 6, 1669. - To this Congregation are joined the liturgical, historical-liturgical, and Sacred Chant Committees.

9. Ceremonial Congregation. To it pertains the moderation of ceremonies in the Pontifical Chapel and Court, and of the sacred functions of Cardinals, and also the precedence of Cardinals and Legates before the Holy See.

10. Congregation of Extraordinary Ecclesiastical Affairs. It treats those affairs which are referred to it through the Secretariat of State, especially those which are referred to Civil Laws and Concordats.

11. Congregation of Studies. To it pertains the moderation of studies and academic degrees of Catholic Universities, even of those which pertain to Religious, and the faculty itself of granting academic degrees.

There are three Tribunals, namely:

1. Sacred Penitentiary. Its jurisdiction is restricted only to those things which regard the internal forum, even non-sacramental, and it settles questions of conscience. It especially retains the norms of the Constitution In Apostolicae of Benedict XIV, Apr. 13, 1744, with the changes introduced and approved by legitimate use being preserved, and also the prescriptions through the Constitution Sapienti consilio and through the law Ord. serv. in R. C. which regard this tribunal. All things are expedited secretly and gratis in this tribunal. - Ord. serv. in R. C., special norms c. 8. art. 1.

2. Sacred Roman Rota. To it are devolved all contentious non-major causes which are conducted in the Roman Curia, both civil and criminal, the judicial process being preserved. But causes are treated in disciplinary manner by the Congregations themselves to which they belong by reason of the matter. The proper Law must be observed by the S. R. Rota, which is joined to the praised Constitution Sapienti Consilio. In it is established the constitution of the Tribunal, competence, and mode of judging. Besides, in judgments the Rules approved by the Supreme Pontiff Pius X on Aug. 4, 1910, and promulgated on Oct. 25 of the same year, are to be observed. Finally those things also must be observed which agree with it in the Constitution Sapienti consilio and in Ord. serv. in R. C. Cap. 2. Canon 14 of the aforesaid proper law declares the competence of the Sacred Roman Rota thus: "§ 1. The Sacred Rota judges in first instance causes which the Roman Pontiff, either motu proprio or at the instance of the parties, has called to his own tribunal and committed to the Sacred Rota; and these, if need be, and unless otherwise provided in the rescript of commission, it judges also in second and third instance, by means of subsequent turns according to the prescriptions of can. 12. § 2. It judges in second instance causes which have been judged in the first grade by the tribunal of the Most Eminent Vicar of the City and by other tribunals of Ordinaries, and are referred to the Holy See by legitimate appeal. And likewise it judges these, if need be, even in third according to the mode prescribed in can. 12. § 3. Finally it judges in the last instance causes already known by Ordinaries and by any other tribunals in the second or further grade, which have not passed into a res judicata, and are referred to the Holy See through legitimate appeal. § 4. It also sees concerning recourses for restitution in full from any sentences which have passed into a res judicata and cannot find remedy before the judge of second instance according to the title on Restitution in full; provided nevertheless that the matter does not concern a res judicata from a sentence of the Sacred Roman Rota; and in these it judges both concerning form and concerning merit."

3. Apostolic Signatura. Newly instituted, it is bound to observe the proper Law joined to the Constitution Sapienti consilio itself, and also those things which agree with it in the Constitution Sapienti consilio and in Ord. serv. in R. C. In that Law the question concerns the constitution and competence of the Supreme Tribunal of the Apostolic Signatura, and the mode of judging. This supreme tribunal knows concerning an exception of suspicion against some auditor of the Rota, concerning violation of secrecy and concerning damages inflicted by Auditors, concerning a complaint of nullity against a rotal sentence, concerning restitution in full against a rotal sentence which has passed into a res judicata.

Five Offices are listed, namely:

1. Apostolic Chancery. Its proper function is to expedite Apostolic Letters under lead concerning the provision of consistorial benefices, concerning the institution of new dioceses and chapters, and for other greater affairs of the Church.

2. Apostolic Datary. Its proper ministry is concerned with all those things which regard non-consistorial benefices to be conferred, reserved to the Apostolic See. Therefore it also draws up and expedites Apostolic Letters for their conferral, exempts in conferring benefices from required conditions, and cares for burdens and pensions imposed by the Supreme Pontiff in conferring the aforesaid benefices. But benefices are conferred by it through a Bull, or through a decree of simple signature, that is, no Bulls having been expedited. Ord. serv. in C. R., special norms c. 9. art. 2.

3. Apostolic Chamber. Its care is also the administration of the temporal goods and rights of the Holy See, especially at the time when this is held vacant, according to the norms of the Constitution Vacante Sede Apostolica, Dec. 25, 1904.

4. Secretariat of State. To it pertain extraordinary ecclesiastical affairs; insignia of honor to be granted, not reserved to the Prelate set over the Pontifical Household; and the expedition of Apostolic Briefs which are committed to it by the various Congregations.

5. Secretariat of Briefs to Princes, and of Latin letters. This double office has its own function of writing the acts of the Supreme Pontiff in Latin.

The beginning of the year henceforth is to be taken not from the day of the Incarnation of the Lord, that is, from March 25, but from the Kalends of January, in all Apostolic letters to be expedited either by the Chancery or by the Datary. Apostolic Letters, by reason of the gravity of the affairs and of varied form, are distinguished into Bulls, Briefs, and Pontifical Rescripts. - Formerly Bulls were written on rather dark and thicker parchment, and in Lombardic or Teutonic characters; but now from the Motu Proprio of Leo XIII, Dec. 29, 1878, they are written on parchment paper and in Latin characters. Likewise the seal or leaden medal, from which they are called Bulls, with attached cords, is preserved only in Apostolic Letters of conferrals, erections, and dismemberments of major benefices, and also in other solemn acts of the Holy See. In others, the impression of a red-colored seal bears the images of the Apostles Peter and Paul, with the inscription of the name of the reigning Supreme Pontiff drawn around it. A Bull is inscribed: Pius, Bishop, Servant of the Servants of God, and the date is written according to the Roman Calendar. Consistorial nominations, the constitution of new dioceses and chapters, are done through a Bull. Briefs are expedited for affairs of lesser moment; they are written on white and thin parchment, or ordinary paper, and in Latin characters. They bear the seal of red wax with the image of S. Peter engaged in fishing; and therefore they are said to be expedited under the Ring of the Fisherman. Briefs are inscribed Pius Pope X. Their date is designated according to the common calendar. - Finally Rescripts are Responses of Pontiffs, which are often written on the back of the petitions themselves of the supplicants. The Congregation which is called the Reverend Fabric of S. Peter has care only of the property of the Basilica of the Prince of the Apostles according to the Constitution Quanta curarum of Benedict XIV, Nov. 15, 1751.

The Committees for advancing studies either of Sacred Scripture or of history; for administering Peter's Pence; for preserving the Faith in the City, remain in the state in which they were before. The Congregation of the Apostolic Visitation of the City having been removed, those things which pertained to it are referred to the committee of Cardinals to be constituted at the Vicariate of the City. In all Congregations, Tribunals, and Offices, things which are grave and extraordinary must first be signified to the Supreme Pontiff. Other things need pontifical approval, unless special faculties have been granted to their Moderators, and excepting the proper sentences of the Sacred Rota and Apostolic Signatura. - But the affairs to be treated in them are to be treated according to the proper laws and norms joined to the same Constitution Sapienti Consilio. - Organization, provision of officials, internal discipline, manner of acting before the Sacred Congregations, and taxes to be paid are established in the Order to be Observed, or General Rule, which is had for the Sacred Congregations, Tribunals, and Offices. - All officials are bound to swear an oath concerning faithfully fulfilling the office, not receiving gifts even spontaneously offered, and preserving secrecy, according to the formula established there. Provision of minor officials is made through competition in titles and knowledge. - Anyone can treat his own affairs before the Sacred Congregations by himself, through an advocate, through a procurator, through an agent either public or private, Ordo servandus p. 1. cap. 9. - Finally in the Sacred Congregations, Tribunals, and Offices of the Roman Curia, the special Norms of the same Order to be Observed of Sept. 29, 1908, p. 2, must be observed, which especially determine competence, the manner of treating various affairs, the mode of proceeding of full Congregations, and the functions and qualities of various administrators. Assistants must be distinguished by the laurel of doctor in sacred theology and in canon law. Although, with the cumulation of rights in the Offices of the Holy See abrogated, its own seat has been constituted for each affair, nevertheless, because in peculiar cases there can be place for doubt or error, the ancient law remains firm by which, when a petition for obtaining a matter pertaining either to grace or to justice has been referred to and accepted by some Office, it is licit for no one for any reason to approach another Office of his own accord for the same end; but the consent of the Office itself with which the matter began to be treated is needed, or a decree of the Consistorial Congregation by which permission is given of transmitting the affair. Once a question has been instituted before some Congregation by the path of administration and discipline, and this mode of acting has been admitted by the parties, or at least not refused, it is no longer licit for them to institute a strictly judicial action on the same cause.

What is epikeia? - Epikeia is brought back to interpretation, which is a benign but equitable interpretation of law, by which a universal law, or when it speaks universally, is judged not to extend itself to such a particular case, although clearly comprehended in the words of the law, because of particular circumstances which were not either foreseen or in fact comprehended by the legislator. If, for example, a law prohibits carrying weapons at night, I can carry them if I must go out and I will be meeting my enemy seeking me to death.

Yet in order that there be place for epikeia, the law must not only cease negatively in the particular case, because namely the end of the law is then lacking; but it must cease contrarily, namely because observance of the law is rendered sinful, harmful, or too burdensome. Nor then is it necessary to ask the superior, although this can easily be done. For this is deduced from the very properties of law. For law must be honorable, useful, possible, just; and therefore it does not oblige with grave inconvenience, nor does it burden someone above the rest. And this pertains to epikeia. For epikeia is the directive virtue of laws, according as the notion of justice and common utility demands. Hence epikeia pertains to justice commonly so called, as a certain existing justice according to which legal justice is directed, as by a higher rule of human acts.

But there is also place for epikeia when, although the law in a particular case is not rendered sinful, harmful, or too burdensome, nevertheless from a certain equity and benignity it is judged, certainly or at least probably, that the legislator did not wish to include that case in the words of the law. For equity is preferred to rigor. L. 7 de In integrum restit.; L. 8 de Iudiciis C. And then, while doubt remains, since it almost falls back into dispensation, it is necessary of itself to approach the superior, if he can be consulted. But this will not be necessary when it is evidently established that the mind of the legislator was otherwise; for in manifest things there is no need of interpretation, but of execution. - L. 3 seq. de Legib.; L. 201; L. 201; S. Th. 1. 2. q. 96. a. 6, 2. 2. q. 60. a. 5 ad 2, q. 120, q. 147. a. 4; Suarez l. 2. c. 16; Struggl q. 4. n. 7. 8; Ithur. Cas. 53. n. 9-13; Schmalz. l. 1. t. 2. n. 44.

207. 1. Law is defined by St. Thomas as "a certain ordination of reason for the common good, promulgated by him who has care of the community."

¹ St. Thomas, Ia IIae, q. 90-93; Suarez, De Legibus, lib. I and lib. II, c. 1-4; Salmanticenses, Tr. XI, De Legibus, c. 1; Billuart, De Legibus, diss. I-II; Bouquillon, n. 53-64; Haine, t. I, De Legibus, q. 1-4; Ball. P., I, n. 236-239; Bautain, Philosophie des Lois, Paris, 1860, ch. I-II; Didiot, n. 588-607; Farges, op. cit., p. 252-265.

It is said: (a) ordination, or norm or rule, by force of which the acts of subjects are ordered to the due end; (b) of reason, because it pertains to reason to know the end and the means proportioned for attaining this end; yet the will accedes to reason, for commanding what reason has judged equitable; from this it is clear that a norm which is not just cannot truly be called a law, because it is not an ordination of reason. (c) For the common good, and consequently not for evil: for then it would not be an ordination nor law, but tyrannical oppression; for the common good, not however for the particular good of some private person or of some members of society: otherwise it would be a precept, not a law. This good can indeed be spiritual, or temporal, or both, and it tends at least mediately and implicitly to the ultimate end. (d) By him who has care of the community: for not just anyone can command such an ordination authentically, but only he who presides over the community, that is, God Himself, and those to whom God has entrusted the power of ruling society. (e) Promulgated, or authentically published and imposed by the Prince, or in his name and authority; for in order that a rule can be useful, it must be applied to the subject; but it cannot be applied unless it is known, and knowledge occurs through promulgation.

2. This definition is deservedly held as masterly. Yet in it the obligation which law imposes is not explicitly declared, because the holy Doctor had already established earlier (a. 1) that law is a rule which obliges to acting. Therefore the definition can easily be completed with these words: "and obliging subjects to doing or omitting something." And thus law is distinguished from counsel.

208. According to St. Thomas,² law imposes obligation in a fourfold way, namely by commanding, forbidding, permitting, punishing: for it commands certain acts of virtues; prohibits evil acts; permits those which are indifferent, and from this permission there follows the obligation of not impeding others from performing those acts; punishes transgressors of the law, and therefore imposes on judges the obligation of inflicting punishment, and on subjects the obligation of undergoing punishment; sometimes it also irritates an act, rendering it invalid, in order more efficaciously to prohibit the same.

² St. Thomas, Ia IIae, q. 92, a. 2.

209. A particular precept differs from law: (a) by reason of the subject upon whom the obligation is imposed: for a precept is imposed on one or more private persons, on account of a particular good; law on the whole society or community, and indeed for the common good. (b) By reason of the author: for making a law public authority and jurisdiction over some community are required; for a precept private authority suffices, for example the authority of parents over children, of a husband over a wife, of a master over servants. (c) By reason of duration: a precept, since it is enjoined for the good of private persons, perishes with the death of those upon whom it has been imposed, and therefore is not of itself perpetual; while law, which is made for the good of society, by its nature is born to endure; it can indeed be abrogated, but of itself it does not perish by the death of the legislator or of the first subjects: it endures as long as it has not been explicitly or implicitly revoked. Therefore if the legislator restricts the effect of the law to a determinate time, it is not properly a law, but a precept. (d) By reason of place: since law is given to a community, it directly affects the territory, and consequently does not oblige subjects who are legitimately outside the territory; but a precept, since it is directed to subjects, directly affects them and obliges them, even if they go out from the limits of the Prince's territory: it is something personal, and adheres to persons wherever they go.

It must be noted, however, that sometimes, among authors, the names law, precept, or statute are taken indiscriminately, so that the sense can be determined only from the context and various adjuncts.

Intention of the introduction. It is not now proposed to us that we should here attempt to treat at length and polemically, with diverse opinions recited and rejected according to their merit, the questions concerning divine law and human obligation which are examined and disputed ex professo in moral philosophy. With God's favor, we should wish only, by the distinct presentation and exposition of certain notions, to prepare the way for obtaining for ourselves a scientific knowledge of laws and sins.

The divinely constituted order. Non-rational beings are led to their end by provident God through a physical necessity of acting, or determination; but man partly through moral necessity, or obligation, partly by morally free option by which, subordinately, that is, with the divinely constituted order intact, he himself predefines an order either for those subject to him or for himself. For just as he has received being, so from God, the universal provider, he finds an order constituted toward the common good of the whole human race, indeed of the whole created world. That order is pre-established from eternity by the purest and immutable divine act which is the very essence of God; but in the mode in which, because of our weakness, we are compelled to explain the divine act and make it as it were "human," the same order results from the eternal divine ordination, and consequently formally from the eternal command by which the divine intellect, under the motion of the divine will loving His infinite goodness to be imitated in the created world, efficaciously decrees creation itself. For insofar as order affects the essences of things, by one and the same intellection and will the world is created and ordered, or God is creator and orderer.

Besides, we are taught by faith that, by a positive will of God beneficent beyond measure, rational creatures have been called to a supernatural, that is, divine, end, and therefore a more sublime ordination of the world has succeeded in place of the merely natural one.

Finally, by the eternal divine foresight, provision has been made for the fall, or the culpable degradation of man, through the better order of the repaired world, to which Christ is assigned as head and end.

Proceed then: the human intellect perceives the essential, or natural and necessary, order of things; and thus human reason is said to participate in the eternal divine reason by its very cognition. At the same time it perceives the necessity of conforming itself to this order; this necessity it expresses by that mysterious word: I ought, and indeed absolutely, independently of every condition or supposition.

Formal and express subjection. Besides, he who formally acknowledges in that order the divine ordination immediately, by the spontaneous conclusion of the intellect, renders by the same word I ought the necessity of formal subjection under the commanding will of God.

Moreover that subjection extends itself to the order itself constituted by the positive will of God: for the necessity of obeying God elevating and repairing man is demonstrated as contained in the natural law itself.

Furthermore, the pre-established order appears to be completed and perfected, with respect had both to human society, or the common life of men, and to the singular life of each one. Thus, moreover, human reason, by the active faculty of providing for order, participates in the active excellence of the divine reason ordering.

Yet this active ordination must be composed, as we just warned, with the necessary observation of the order already constituted by God, either necessarily or freely, so that it is not a subversion of that order, but on the contrary its completion or perfection.

The present question concerning obligation. If man contemplated the universal order in God Himself, he would certainly acknowledge and adore Him formally as the author of order, and would conceive the necessity of obeying formally as theological, or as existing toward God.

But now he reads the order in created things themselves and in his own nature. Hence without the express and formal acknowledgment of God that mysterious I ought is pronounced and conceived. Hence a question, neither recent nor light, has arisen: what does psychologically the "I ought" contain, and by what cause is it generated in us; or what is its ontological or objective explanation?

This question differs formally from this other: whenever a man acts in a different way from that in which, according to the dictate of conscience, he ought to act, does he sin theologically or not? The former question pertains here; the latter is conveniently deferred to the treatise on sins. Yet we do not deny that it depends virtually on the former. For this reason we have affirmed a merely formal distinction between the two questions.

The description of obligation, or its nominal definition, agrees sufficiently among doctors. It means an objective absolute necessity imposed on the will. Objective necessity is opposed to subjective coercion or determination to one thing, and is a necessity which is perceived by the intellect as if an object and exhibited to the will. It is absolute insofar as, just like material or physical necessity, it excludes every exception. It is imposed on the will insofar as the will at the same time experiences itself as psychologically free and yet bound.

With this description there agrees also the psychological analysis of the more accepted philosophers. Thus Rauh ¹, in the sense of moral obligation, found these things: the spontaneous (not free) idea of a thing as to be done; the consciousness of that idea as of a thing free and yet, by a spontaneous act of reason, as if extorted; various effects of sadness, peace, as signs of these actions.

That spontaneous dictate, according to many, coheres with a certain innate and invincible appetite, invincible at least for this reason, that it remains in the very act by which it is contradicted, so that one acting otherwise is in a certain way absurd, while his practical-practical conclusion (or conclusion concerning action as here and now to be done) contradicts the necessary more general, or speculative-practical, judgment by which he judges: good is to be done, evil is to be avoided.

But is that appetite formally the appetite of my happiness, so that our spontaneous intuition - good is to be done, evil is to be avoided - is a certain conclusion of a reasoning of this sort: I wish to be happy; I cannot be happy unless I do good and avoid evil; therefore good is to be done and evil is to be avoided?

This explanation is shown false by the intimate sense itself. He who says that he is obligated often abstracts from his own happiness. Indeed he does not judge himself freed from obligation because he erroneously thinks the action to be done is opposed to his own happiness. Suppose some materialist who judges that the present life, that life namely besides which he holds there is none, must be sacrificed for his country.

Does the same dictate of obligation rather cohere with another profound will or innate inclination, that is, with an inclination toward that order which reason detects, and which therefore is also called rational? This inclination toward the honest good is in our very nature, which, as it imitates divine being, so also imitates divine holiness ¹. On account of divine holiness God absolutely wills the order of reason; on account of the participated holiness of God, our will has a necessary propensity to doing the good simply such and to avoiding contrary evil.

But shall we find in a certain innate propensity, or necessary subjective will, an adequate explanation of subjective obligation? If we observe ourselves psychologically, that dictate, I ought, expresses more than a certain innate propensity or inclination, for instance toward the honest good, which remains even when by my particular choice I contradict it. For conscience testifies to us more than this: "I act against my inclination," which it reports to me whenever I abdicate or neglect some appetite. Consciousness of inclination would lead me only to the conditioned dictate: "if you wish to obey your inclination, you must act thus." But the word I ought is much more absolute; it is released even from every inclination: whether I have this or not, nevertheless I ought.

If matters stand thus, nothing remains except this: the word I ought expresses the necessity, confusedly apprehended, of subjection to that order toward which I have an inclination; this subjection is immediately perceived in my created, or dependent, nature. Therefore it renders the consciousness of a certain Superior who must be obeyed. To use other words: I ought, that word, does not signify: by physical necessity I will; or by physical necessity I incline; but: by moral necessity I am compelled - moral, I say, because in my perceived necessary subjection the same thing is perceived: otherwise, I act badly; and I can indeed act badly physically, but I cannot by another reason, which I call moral and which is imposed on me.

And so the necessity of the divine will is explained by the infinite holiness of God; the moral necessity of our will is explained by our participated holiness and by our perceived subjection. Not our holiness alone, but this holiness completed by the intuition of our subjection, morally binds our will.

¹ Revue de Metaphysique et de morale, 1902, pp. 653-660, Le sentiment d'obligation morale.

¹ Cf. St. Thomas, 1, 2, q. 91, art. 2, c.

By the same intellection and will by which He created the world, God ordered it, morally binding the free human will both to the essential order and to the order superadded by His positive and munificent will. But the concept of moral obligation, which is expressed by the words, "I ought absolutely," does not seem able to be explained by a certain profound and physically necessary will of appetition, whether of one's own happiness or of the honest good; but it expresses the necessity of subjection to the order of reason, or at least a confused consciousness of a Superior who must be obeyed.

The order of speaking will naturally be this: first we shall treat of laws in common, then of divine law, then of human ecclesiastical law, finally of civil law. Between divine and human law we shall briefly explain the account of the law of nations.

Disposition of the title. We shall distribute this first Title into ten chapters in this way: I. The notion and essentials of law, where we shall speak of promulgation itself; II. The properties of law; III. The sanction of law; IV. The divisions of laws; V. Interpretations of law; VI. The author of law; VII. The subject of law; VIII. The observance of law; IX. The cessation of law; X. The diminished account of law in precepts and counsels.

Yet in the general exposition this must never be omitted: that the account of legislator is not univocal in God and in man, but principally belongs to God, and analogically, under God, to men.

The usefulness of the treatise is manifest, since there is question of the very measure of human actions, which are the most formal object of moral theology.

The divine Reason and Will, which create the whole world, order the same, or fittingly dispose it to its end. For the whole world, with its parts, is a certain whole whose unity and finality must be preserved and strengthened by a wise ordination. But a fitting disposition will be efficacious and adapted to the nature of things. Therefore irrational creatures will be drawn by physical necessity, but rational creatures will be moved insofar as practical dictates concerning the supreme ordination to be observed and completed are impressed upon their intellect, without violation of their nature. That is, they are to be induced to act freely and freely to abstain from action. And since the will, or their moving principle, is a rational appetite, they cannot be induced thus unless a norm of action is perceived by the intellect. Consequently, the norm must be authentically or authoritatively notified to the intellect; that is, an intimation or promulgation of the divine ordination is required.

By a not dissimilar reason, those who, under God, have human actions to be ordered must imperatively propose their practical dictates to the intellect of those whom they rule.

Hence the classic definition of law is demonstrated: "An ordination of reason for the common good, promulgated by him who has care of the community" (St. Thomas, 1, 2, q. 90, art. 4).

Ordination means disposition according to a principle of unity, which, when there is question of the universe, is primarily divine glory, but secondarily consummated perfection, or the beatitude of rational creatures.

Of regulating reason: for reason directs human actions.

For the common good: for the very end to which individual men are directed is their common good, whether you consider God, or the societies to which men are ascribed.

By him who has care of the community: whether by the title of one ruling, or by the title of one representing the multitude to be disposed to its end. St. Thomas mentions this title, 1, 2, q. 90, art. 3.

Promulgated or intimated, that is, imperatively communicated to the intellect, in which consequently the ordination of the legislator himself exists participatively.

Corollaries. I. The essentials of law insofar as it is for the common good. For the value itself of law there is required negatively: that it be honest, or not inducing to anything against the order either of nature or of positive divine law; that it be just, that is, that, insofar as the common good permits, it preserve distributive justice in apportioning common goods and burdens, and thus violate no one's right.

Positively, it is necessary that it conduce to the common good, and consequently that it be possible of observance not only physically but also morally, or not too difficult; and that it be necessary, or at least useful.

Concerning these conditions these things must further be observed:

1. It is metaphysically repugnant that the most wise God should order things which do not satisfy the necessary conditions. Hence these conditions are prescribed by the divine law itself only to human legislators. In divine law they are not to be attended to except, where doubt can arise, for judging concerning the true origin of an ordination which is presented as divine.

2. A law which commands dishonest things is destitute of all value, and it is never right formally to cooperate with such a law. But a law can be honest which does not punish certain evils, indeed positively permits them, yet without formal approval. Wherefore, the circumstances having been considered, certain "liberties" can be sanctioned, for example of the press, of associations, of opinions, not indeed that depraved things be written in print or propagated, but with foresight that many men will abuse that faculty. Such things will be able to be sanctioned if that license seems more to be desired than the restraining of liberty.

3. Although an inequitable law, or unjust law, as such, is invalid, nevertheless it can happen that, on account of the useful parts which it contains, or for avoiding greater evils, it must be tolerated and executed by good citizens, when there is question of goods which can freely be abdicated. There then accedes a certain higher law, of the natural order, which commands that, on account of the common good itself, those inequities, or inequalities, be tolerated.

4. What difficulty is excessive must be estimated from the condition of the persons and from common necessities. Thus upon religious, public officials, with attention to their state, heroic things are sometimes imposed. Thus in time of war heroic things are demanded from many citizens. A law which demands such things becomes useful for the common good, so that the reason why it would not be valid must be said to fail.

5. Usefulness for the common good suffices if it is indirect and mediate. But concerning this the legislator himself makes judgment. Wherefore manifest uselessness, and indeed general uselessness, is required if obedience can be refused on account of a reason of this sort. If utility ceases in the particular case alone, nevertheless the law will often remain to be observed, whether on account of avoiding scandal, or because the law will have been made for guarding against a general danger. Such are the laws concerning the prohibition of books. For then, if the law has been ecclesiastical, c. 21 must be observed: "Laws made for guarding against a general danger urge, even if in a particular case the danger is not present."

Moreover deception is easy in this matter. Thus in a man greatly mortified, or one who assiduously frequents church, the reason for the precepts concerning fasting or hearing Mass on a feast day can seem to have ceased, while nevertheless the reason of common observance remains.

Finally, lest a greater evil follow, a subject also can be obligated to continue observing a useless law. Yet if danger of mistake and scandal has been entirely absent, St. Alphonsus did not dare to disapprove the more benign opinion. For example, if it is entirely certain that a man has been baptized and in vain one writes to obtain a document required of itself, then, from epikeia, that demand of the document can be omitted.

II. Insofar as law is for a community, promulgation itself pertains to its essence. "Laws are established when they are promulgated," says the Code of Canon Law, c. 8, § 1. But promulgation is: "the solemn intimation of a law so made that it can become known to the community."

Yet it is not required that the law can strictly reach all, since law directly affects not individuals but the community. Nor is it necessary that it already be actually known to the community. For from the fact that it can become known to the community, it begins efficaciously to obligate the individual persons who know the law. But a private communication, sufficient for a few, does not obligate even those who know the law or ordination. But when promulgation has been made, and not before, the law obligates all subjects in first act; but in second act only those who are not excused by ignorance, or who have certain knowledge of the law.

For concerning others the principle is valid: "No one is bound except through knowledge of the law or precept." For no one can command anything to a man, or to a rational creature, unless his practical dictate, or what he wishes to command, is communicated with the mind of him whom he commands. But as long as this is not truly known, at least in a human way, there has been communicated not the dictate of one commanding, but only a doubt or suspicion of it. Cf. St. Thomas, De Veritate, q. 17, art. 3.

With the nature of the thing considered - for the legislator can establish more benignly concerning his law - as widely as the law is knowable, so widely is it promulgated and obligates in first act. Wherefore doubts concerning the sense of the law which can be resolved by private study will of themselves not prevent the law from having been promulgated according to that true sense. And by whatever path, for example by authentic declaration, that sense then appears, the excuse of ignorance will at the same time be removed. But it can happen that a law is objectively obscure or ambiguous, so that an inextricable doubt remains. An authentic explanation of this doubt needs a distinct promulgation, since that signification was not promulgated with the law itself. Hence, from c. 17, § 2, an authentic interpretation which explains a doubtful law must be promulgated.

Lemmas. I. Vacation of the law. Although for the present obligation of a law it is not necessary of itself that it already be actually known to the community, nevertheless, with a particular reason excluded, a human legislator prudently is accustomed to defer the obligation of the law until the law becomes morally known to the community itself. Through that interval of time, the law is said to vacate.

II. Physical laws and laws of the arts. Law means a norm of acting. Hence, insofar as they agree in the account of norm, there are also physical laws, which irrational things obey or follow by subjective necessity; and laws of the arts, to which exterior works must be accommodated so that the intended end of utility or beauty may be obtained. But the laws of human action, insofar as they are a rule of morals, are also called moral laws.

III. Precepts. Those things also which are commanded to individuals to be done or omitted can be referred to the common good, either immediately, as if they are commanded on account of the common good, or mediately, insofar as the private good itself is of interest for the common good. Therefore many things are also prescribed to single persons or to several, which are called precepts. (Cf. below for a more accurate notion.)

I. Law is defined: An ordination of reason for the common good, promulgated by him who has care of the community.

Ordination, or disposition according to a principle of unity, is made primarily, when there is question of the universe, according to divine glory, secondarily, according to the beatitude of rational creatures.

Of regulating reason.

For the common good, such as every end of man is.

By him who, by title of one ruling or of one representing the multitude, has care of the community.

Promulgated, or imperatively communicated to the intellect of subjects.

II. For the value of a law there is required negatively that it be honest, commanding nothing against the order of reason or a superior law, although perhaps it tolerates many evils; that it be, insofar as the common good allows, just, or that it preserve the norm of equality and violate no one's right. There is required positively that it conduce to the common good and consequently be possible of observance and at least indirectly necessary or useful. In order to rule the community, it is also required that through intimation it be able to become known to the community, that is, that it be promulgated.

But individual persons are actually bound when they have human knowledge concerning the law. To dissipate a true obscurity of the law, a new promulgation is required.

III. Vacation of the law designates the time through which a law, by the benign will of the legislator, does not yet obligate, although it has been promulgated.

Analogically there are also laws of the physical world and of the arts.

IV. But to individual men precepts are given, also for the common good.

As properties of law there are customarily numbered: obligation, which regards the efficacy of law; universality, which regards the subject; perpetuity, which regards duration; extension to future things alone, which regards temporal extension. (Territoriality pertains only to a human legislator.) In what way each is to be understood must be said briefly by us.

The first and common efficiency of law is called obligation. For unless it binds the will, law will not avail to induce the unity which the legislator intends. So indeed for the most part. But from the very reason added, it is evident that the obligation of law coheres with its efficacy, or that the necessity of obligation is derived from the necessity of efficacy. Therefore if, without properly so-called obligation, law can be efficacious, obligation will not pertain to the essence itself of law. Hence moral laws are distinguished, whose transgression immediately induces theological guilt, or which immediately obligate; and penal laws, which merely impose the necessity of undergoing a penalty; while those are called mixed which obligate under sin and penalty.

Concerning penal law. Among writers prior to Suarez, there were some, for example Sylvester, who denied that merely penal laws could be had: for it would be repugnant to the essence of law that it not obligate to the commanded act; nor could a penalty be inflicted without guilt, while guilt is excluded if obligation is denied.

Yet obligation is not expressed in the definition of law; nor does it seem strictly to be contained in its concept. For a legislator who wills that his practical dictate concerning a thing to be done become the common practical dictate of his subjects, in reality wills to order them to the common good. Therefore his will or intention is a legislative will. And if that will is commonly efficacious, it truly orders the subjects. But this efficacy can sometimes be obtained even without obligation or bond of the will; as if, among those zealous for perfection, he obtains spontaneous docility from most at least; just as also many singular precepts are given efficaciously without obligation under sin, by a simple signification of the will. If now some exterior penalty seems opportune but sufficient for efficacious direction, the same legislator will be able to bind the will only by the penalty to be undergone. This penalty is just, because it has been imposed for the transgression of an order legitimately constituted, although not essential, nor commanded under sin. There is a delict in the external forum; it is not necessary that there be one in the internal forum. And thus reply is made to the objection: no penalty without guilt. There is juridical guilt: which suffices.

Besides, the very mode of conceiving penal law varies. In the nineteenth century there prevailed the explanation through disjunctive obligation, as if the legislator had left the option of obedience or penalty. Thus C. D'Annibale, Summula, I, n. 207; thus Bouquillon, Theol. Fundament., n. 131. But today that opinion is deservedly abandoned, since the legislator by no means indifferently wills the one or the other, but immediately wills and imposes one thing: obedience to his law, yet in such a way that the moral obligation is terminated to the penalty alone to be undergone or suffered. For, as Wernz writes ¹: "If obligation is imposed only to undergoing a penalty, it can happen that the obligation arises only after the sentence of a judge." That opinion, which is ascribed to Billuart ², and pleases Koch ³, Prummer ⁴, Makoto ⁵, is already repeated in Suarez ⁶, when he says that penal laws are "binding under threat of penalty, although they do not bind in conscience to the act on account of whose transgression they bind to the penalty"; and he describes a purely penal law as one "which has only one quasi-hypothetical precept, of sustaining such a penalty or inconvenience if this is not done."

Merely penal laws are found only in human laws; all divine laws obligate conscience and are sanctioned by penalties. In human laws themselves, Bouquillon ⁷ judges that merely penal laws cannot reasonably be given "unless the burden imposed of itself avails for obtaining the special end of the act, and for compensating in some measure its defect, but not if it has merely coercive force." Thus he understands fasting under the penalty alone of alms, a tax under the penalty alone of a fine; but the use of ecclesiastical dress could not be imposed under the penalty alone of a fine, because the fine would not compensate the defect of the thing enjoined. Yet we do not think that this is established. Suarez estimates more simply that often, for avoiding dangers of souls, it can be expedient that a merely penal law be made, "because some coercion is useful; and that a greater one not be made is also useful to souls and pertains rather to sweet providence than to rigor" (l. c.).

¹ Ius Decretalium, I, n. 109. Moreover he himself abstains from every explanation.

² De Lege, diss. 4, art. 4.

³ Lehrb. der Moraltheologie, P. I. S. 1. c. 2.

⁴ Manuale Theolog. moralis, n. 209, ss.

⁵ Institutiones iuris canonici, I, n. 221.

⁶ De Legibus, l. 5, c. 4, n. 1.

⁷ Theolog. mor. fundament., n. 131.

Concerning the gravity of moral obligation. The guilt under which moral law obligates is judged to be adapted to the matter itself, so that it is grave where a matter of grave moment is treated, unless the legislator has sufficiently signified a diverse will. For just as he can abstain from the precept itself, so he can temper the force of his precept.

But beyond the capacity of the matter, or to obligate gravely in a light matter, at least a human legislator cannot.

Moreover the moment of the law itself must be prudently measured from the object and end, as will be declared more in the treatise on sin.

"Law is a common precept" ¹. And so it is called universal insofar as, even if many laws are not applicable to all subjects either collectively or distributively, and laws are given which directly regard one person, for example the Pontiff, the King, nevertheless every law considers subjects formally not as singular persons, but as pertaining to the community, of which they are the head or members. That is, to insist on the example brought forward, the law will be not concerning Gregory the Pontiff or Edward the king, but concerning the Pontiff or the King in general.

But universality understood thus is a true property of law, since it flows from the essential notion itself of law, by which it is said to be an ordination for the common good.

For if it is for the common good, it will reach singular persons or families or lesser groups under the respect of their relation to the community. The respect will be demonstrated either by office (a law concerning a vicar general), or by kind or condition (a law concerning clerics), or by place or habitation (a law concerning residents, concerning travelers).

Certainly it can be demanded by the common good itself that something be commanded to a certain singular person as such; but that command will be called by another name: that of precept.

Therefore do not confuse the community for which a law can be made, and the community concerning which a law is made. The former must be such that it is, or can be, a perfect community; the latter can be any community whatsoever, even a lesser one. Thus a law is not made for a parish; but a law concerning such a parish can well be made.

¹ Cf. Suarez, De Legibus, l. I, c. 6, n. 17.

Every law is perpetual, at least by this reason, that when its author has died, it itself does not cease. For the author of law, as such, represents the community, which does not cease by the death of the prince.

In general also by law provision is made for a permanent necessity or utility of society. Wherefore most laws are perpetual by this reason also, that they are not made for a certain day, but are accustomed to remain until they are explicitly or implicitly abrogated. In this sense they are sometimes said to be "going to be valid perpetually." But human laws are not positively perennial, nor is perenniality contained in the account of law. Nothing prevents laws from being made, even divine laws, for a certain time or until the circumstances persevere. Think of the Old Testament, which, the priesthood having been transferred, was abrogated ¹. Such a temporary law, according to the testimony of the Holy Office, March 20-22, 1918, are the prescriptions concerning modernism to be overcome (A.A.S. X, p. 136).

Therefore it must be attributed to the positive will of the legislator if temporary sanctions, as such, are called by a name other than that of law.

And so positive perpetuity cannot strictly be exhibited as a property of law.

¹ Cf. Epistle to the Hebrews 7, 12.

Laws regard future things, not past things, unless provision is made in them concerning past things by name. Thus wisely the Code of Canon Law, c. 10.

If we consider only the effect of obligation, the rule concerning the application of law to future things alone is a true property of law, which admits no exception. For since law cannot impose its obligation except by means of promulgation or notification, it is manifest that no obligation can be had unless it is posterior to the law. Acts done at a time when the law did not exist could not violate the law, or constitute anyone guilty. But laws have other permanent effects in the juridical condition (for example of an administrator, of a professed person) to which they gave beginning. And it is in the power of the legislator that he apply the regime of a new law to present effects of anterior acts or of a status previously possessed. Nothing impedes him from declaring a juridical act, for example a testament or sale, invalid, because the conditions of the new law have by no means been satisfied. Yet the common good requires that citizens not be disturbed in the peaceful possession of their things without a special cause. Wherefore the Code enunciates the admitted principle concerning the "non-retroactivity of laws," tempered however by clearly established exceptions.

The corollary of this principle is that acquired rights are not taken away by a new law.

But the whole difficulty is in explaining an acquired right, from which a new law of itself does not derogate. Etymologically ius quaesitum is the same as ius acquisitum, an acquired right. But we have handed down a twofold explanation of acquired right in the Epitome iuris canonici (I, n. 45 a).

1. From an antecedent law as such, no acquired right immediately arises. For the law was known to be mutable, and what was founded on the law alone necessarily falls with the foundation, or the law. Thus what the capacity or incapacity of a minor person is must be estimated from the present law. But an acquired right is had when a title diverse from the law, for example a contract, intervenes to firm up some juridical condition or some honor or privilege. Thus acts legitimately done by a minor according to the preceding law will of themselves remain valid, although, from the new law, such acts can no longer validly be done by them.

2. An acquired right is taken away if, on account of his own past deed, or the new law not having been observed, someone suffers inconvenience or detriment. But it is not taken away if the law is applied to him because, independently of his own past deed, he is now in the required conditions of application. Suppose a new incapacity to be introduced for clerics or professed persons: even those who before the Code had become clerics or professed persons will contract this incapacity, unless the legislator positively wills to treat them more benignly.

The properties of law are:

I. Obligation, insofar as the efficacy of direction requires it. Hence laws are moral, obligating under guilt; penal, under penalty; mixed, under guilt and penalty.

A penal law is not to be conceived as disjunctive; but its efficacy is provided for by the sanction of penalty alone, without another obligation.

The gravity of moral obligation is judged adapted to the matter; nor can at least a human legislator obligate beyond the capacity of the matter; yet it remains whole to him to obligate below such capacity.

II. Universality, insofar as law reaches subjects under a common and not individual account.

III. Perpetuity, insofar as, when the author has died, the law does not cease. But a law can be made for a certain time.

IV. Extension to future things alone, insofar as of itself law does not regard past things unless this is expressly provided. Wherefore it does not take away acquired rights: that is, it does not suppress a title, diverse from a superior law, which immediately founds a juridical condition; nor on account of a past deed does it generate trouble or inconvenience for subjects.

— Sanction means, first, the act of making a decree or law; hence, in law today, not rarely, by this name is called the act by which a king or the president of a republic, by signing his name, as it were completes the law. Then it signified the law itself or decree, especially one which is urged by a penalty. And because both a penalty and a law are decreed or sanctioned, sanction is used of the penal coercion which is added to law for strengthening the law or for compensating the social detriment brought about by violation of the law.

Penalty, properly, is an evil contrary to the will and inflicted because of fault. It is distinguished as concomitant, which violation of the law brings with itself, by a greater or lesser intrinsic necessity (wherefore it is also called an internal sanction), and external or inflicted, which has an extrinsic cause. Every penalty, as announced, is medicinal; for it is announced so that the law may be better observed. But as inflicted, that penalty is medicinal which immediately tends to the amendment or good of the delinquent himself, while vindicative penalty is imposed in vindication of the violated order.

That sanction of law cannot be confused with its obligation. Obligation pertains to the directive force of the law, sanction to its coercive force. Obligation affects all subjects; sanction affects only transgressors of the law. Obligation requires the free will of the subjects; sanction of itself is repugnant to the will. Obligation is immediately a binding to good order; sanction is immediately the privation of some good.

Of itself, indeed, a good will can be helped both by rewards and by punishments, and the opposition of the passions can be moderated. And thus, in a broader use, the word is taken, for example, by Noldin, Principia n. 108. Human legislators, however, are not accustomed to add the stimulus of rewards to their laws. Nor could they generally do this. For since a sufficiently universal external observance of the law is procured, to which alone the human legislator can attend, most citizens would have to be rewarded. But since he himself would have to draw the aids from the community itself, by a reward too general he could only restore to the community what he had received from the community; that is, citizens would receive as a reward their own gifts. Therefore even for this reason divine law excels human law, because it remunerates virtue with an infinite reward.

— The sanction of law now means the penal coercion by which the law is urged. Penalty, or an evil contrary to the will and inflicted because of fault, is distinguished as concomitant or internal, and inflicted.

God alone at the same time sanctions his law with magnificent rewards.

142. Notion. The name of law (lex) seems to be derived from binding (ligare).⁵ For creatures are bound to certain norms of acting, which they must observe for the good of the whole universe; and therefore absolutely all creatures are bound by laws given by God and are subject to them. But irrational creatures (whether animate or inanimate) are necessarily subject to physical laws. And so the Creator has established physical laws for the stars in the firmament of heaven as well as for worms on the earth; and all beings obey at the nod of the eternal ruler. In Moral Theology we do not speak of these physical laws, of which the natural sciences treat.

There are other laws, which bind only rational creatures by prescribing norms according to which free actions are to be ordered in relation to the ultimate end. They are called moral laws, and now there is discussion of these alone. But moral law can be considered in three ways: 1. According as it exists in the legislator as in the one regulating, and according as it pre-requires three acts, namely, a) an act of reason deliberating and determining what is useful for the good government of the community; b) an act of will determining that such statutes bind subjects; c) an act of promulgation of the law in the community. - 2. According as it is in the subjects as in those regulated. For subjects must know the law and its obligation and be directed according to it in their actions. - 3. According as it is in an exterior sign, for example, in a book of laws (Bürgerliches Gesetzbuch, Strafgesetzbuch, Code civil, etc.) or in a custom having the force of law. - Now we take law according to the first consideration, and in this sense law is defined by St. Thomas:⁶

⁵ Others derive the name of law from legere, others from eligere.

⁶ S. theol. I-II, q. 90, a. 4.

143. Definition. Law is "a certain ordinance of reason for the common good, promulgated by him who has care of the community."

This definition indeed, as if classical and magisterial and approved by almost all authors, must be explained in a few words.

It is said first: "a certain ordinance of reason,"⁷ by which words is designated the proximate efficient cause of law, namely, reason. For practical reason and not will (as some teach after Suarez) properly causes law. For it belongs to reason and not to will to order to a due end through proportionate means, to find norms of acting, and to command.⁸ Certainly in establishing a law the will also must intervene, but it is not the proper and proximate cause, because it only moves reason to acting and, once the law has been established, executes its application. Since by the Angelic Doctor law is called a certain ordinance, it is intimated that not every ordinance of reason is law, since a precept and counsel are also ordinances of reason. Therefore the ordinance which causes law must be a true command, and therefore have certain qualities, namely, it must be a) efficacious and preceptive, inducing a true obligation; hence, for example, counsel, although it is also a certain ordinance of reason, nevertheless is not law; b) firm, stable, and perpetual, namely, in this sense, that it does not cease after a short time or through the death of the legislator, nor is it borne for present men only, but also for future subjects. Yet from this nothing prevents a law from being able to cease from diverse causes, as will be said below. By this perpetuity law is especially distinguished from a simple common precept, that is, one given to a community, which is usually not binding for so long. Nevertheless there are also other differences between law and a common precept.

Moreover, in practice it is not always clearly certain whether some moral obligation imposed upon subjects is a true law or only a precept or statute. But the obligation of some common precept or statute can be equally or even more grave than that of some law. Hence for Moral Theology it often matters little whether some obligation arises from law or from a common precept alone. - A particular precept, which is given to some particular person or family, is plainly distinguished from law of itself.

It is said second: "for the common good,"⁹ by which words is designated the necessary end of any law. Therefore an ordinance of a superior which tends to the evil or detriment of the community is not a true law or ceases to be law. Hence utility for the common good, which every law must intend, is assigned as a necessary property of any law. And so the precepts of tyrants, which tend only to some private good, are not laws.¹⁰ - But the common good can be obtained through laws in two ways: namely, directly and indirectly.

A law directly procures the common good insofar as the actions prescribed immediately benefit the community and only indirectly the subject persons; for example, laws of taxes directly serve the republic, which nevertheless must expend the money obtained from taxes for the utility of the subjects. Some law indirectly imports the common good insofar as it immediately and first causes private good, and by means of private good conduces to the common good; for example, privileges granted to religious are true laws, which indeed immediately and first conduce to the private good of religious, but indirectly also bring great utility to the common good of the whole Church, since religious are bound to use their privileges for the honor and profit of the Church. The same holds concerning the so-called privilege of the "canon" granted to all clerics.

It is said third: "by him who has care of the community." By these words is designated the author of the law or the legislator. For no one is able to establish laws properly so called except he who has care of the whole community, whether he is a prince or some legislative body.¹¹ For it would be illicit usurpation if someone wished to impose some obligation upon the whole community, unless he had care of that community. Hence laws introduced by custom are not true laws before at least the implicit consent of the legislator has acceded, as will be said below n. 278. But a community which is capable of receiving laws must be a perfect community, that is, one of its own right, having in itself sufficient means for arriving at its proper end and independent in its own order from any other society. Hence, for example, since the domestic family is not a perfect community, the father of the family can indeed issue statutes and precepts, but not laws properly so called. In ecclesiastical and civil law those communities which are autonomous, that is, which can establish laws for themselves, are expressly designated.

It is said fourth: "promulgated." Promulgation is the public intimation of law made by the legislator for the subjects. No ordinance of a superior can actually bind subjects unless it has been promulgated. But when sufficient promulgation is present will be said below concerning individual laws. Whether promulgation is of the essence of law or only a condition of law is disputed among authors.¹²

⁷ In the German language it is said: Verordnung, Anordnung; in the French language: ordonnance. The word ordinatio here is to be taken actively and not passively. Yet the ordinance of the legislator causes in the subjects an excellent passive ordination or order.

⁸ S. theol. I-II, q. 90, a. 1. Already Tertullian said: "Law consists in reason."

⁹ S. theol. a. 2. This common good is both temporal and spiritual, namely, the ultimate end (cf. St. Thomas I-II, q. 91, a. 4).

¹⁰ Since law necessarily procures the common good, it also necessarily has certain properties, which are enumerated in this way in the Decree of Gratian (c. 2, D. 4): "Now a law will be honorable, just, possible, according to nature, according to the custom of the country, fitting to place and time, necessary, useful, also manifest, lest it contain anything through obscurity unto deception, written for no private advantage, but for the common utility of citizens."

¹¹ Below n. 185 it will be said who are able to make laws.

¹² S. theol. I-II, q. 90, a. 4 and Billuart, De leg. diss. 1, a. 3. Promulgation more truly does not pertain to the essence of law, which consists in this, that it be a rule of morals. But promulgation is neither the rule of morals nor a part of the rule, but only a manifestation of that rule. Nor does the Code of Canon Law c. 8, § 1, establishing after Gratian, "Laws are instituted when they are promulgated," stand against this opinion. For by promulgation laws indeed are instituted perfectly and as to second act, but they can already have been instituted before in first act by the legislator.

144. Corollary 1. From the definition given it follows that moral law indeed induces a moral obligation, but does not destroy liberty. For liberty by no means consists in license of doing whatever things are willed, but is the faculty of choosing means while the order of the end is preserved. Moreover, sometimes for a private man it is most difficult by his own genius to find means apt for attaining the ultimate end. But if someone observes just laws (whether civil or ecclesiastical), he is certain that he is employing right means for attaining his ultimate end. For any just law renders subjects good and leads them securely to the ultimate good. Since these things are so, even if man had not sinned, moral law would still have been given for the human race.

145. Corollary 2. St. Thomas¹³ enumerates four acts of law, namely, to command, to prohibit, to permit, to punish. For law is instituted for directing human acts to the good of the community. Moreover, for obtaining the good of the community, good acts are to be done, and consequently they are commanded; evil acts are to be omitted, and therefore they are prohibited. But some acts are to be permitted, that is, neither commanded nor prohibited, because otherwise the liberty of subjects would be too much restricted. Finally, transgressors of the law and evildoers are to be punished; for this pertains to the sanction of law. For a law is sanctioned from the fact that it is constituted holy, that is, inviolable; and this indeed is done by punishing transgressors or also by rewarding observers. - Certain modern authors still posit a fifth act of law, namely, to invalidate; for invalidating laws exist, as will be explained below; but this act of invalidating is reduced to the act of punishing, because in reality the invalidated act is some punishment for him who placed that act.

¹³ S. theol. I-II, q. 92, a. 2; cf. L. 7, Dig. 1, 3 in the old Roman law.

146. Divisions. Very many divisions of law are brought forward, and there is no time to enumerate them all here. The principal divisions are:

1. By reason of the author: divine law and human law, according as either God Himself or man was the immediate legislator. But divine law is subdivided:

a) into eternal law, which is the reason of divine wisdom according as it is directive of all creatures to the ultimate end;

b) into natural law, which God has implanted in rational creatures and which is nothing other than the light of natural reason showing what is to be done for obtaining the ultimate end;

c) into positive-divine law, which has been promulgated by special divine revelation and is contained in the Old and New Testament.

But human law is subdivided:

a) into ecclesiastical, which has been given by an ecclesiastical legislator;

b) into civil, which has been made by a civil legislator.

2. By reason of the object: affirmative law and negative law are distinguished,¹⁴ insofar as the former directly gives precepts concerning good things to be done, for example, God is to be worshiped; the neighbor must be loved; - but the latter prohibits certain depraved acts, for example, do not commit theft, do not tell a lie.

The adage must be noted: "An affirmative law binds always, but not for always; but a negative law binds always and for always." The sense of this adage is: An affirmative law does not demand that the prescribed acts be placed at every moment; but a negative law demands that the prohibited act be omitted at every moment; for example, the affirmative law of love toward the neighbor requires that we indeed love the neighbor, but we are by no means bound to elicit acts of love at every moment; but the negative law of not stealing demands that always and at every moment we abstain from theft; for it is never licit to steal.

Other divisions have place only in human laws, for example, invalidating law, penal law, law founded on a false presumption, etc.; and therefore we omit them now, since later in their own places we shall treat of them.

¹⁴ In German: gebietende und verbietende Gesetze.

147. Scholion. On the Name of Law in Sacred Scripture. The name of law is very often used in Sacred Scripture, but not in one and the same sense. Thus, for example, law sometimes signifies an inclination or propensity: "I see another law in my members, fighting against the law of my mind."¹⁵ Sometimes it signifies the work itself prescribed by the law: "None of you keepeth the law."¹⁶ - Sometimes it signifies the book which contains the law; and thus the book of the Pentateuch is usually called the law. Therefore one must attend to the particular sense in which the word law is employed in each place.¹⁷

¹⁵ Rom. 7:23.

¹⁶ John 7:19.

¹⁷ See Billuart, De leg. diss. 1, a. 1.

St. Thomas, I-II, q. 90, a. 1, 2, 3.

221. Notion of law. - Law, according to some, is said from binding (ligare) (q. 90, a. 1), because it is a rule which binds and necessitates to acting; according to others from reading (legere), because it is usually written on public tablets and read, and this is usually done because it is a rule of things to be chosen (Cicero, De Legibus I, 19). Hence:

a) in the broadest sense it is a rule and measure according to which something ought to be done, that is, according to which something is inclined to some end and induced to acting or withdrawn from it; in this sense even for all irrational things a law has been fixed beforehand (physical law: Job XXVIII, 26; Prov. VIII, 27; Rom. VII, 23);

b) in a less broad sense, law, because it is an ordination of reason, regards only the rational creature, which alone participates in it rationally; and therefore it is the rule and measure of whatever acts are done dependently upon reason, even of arts, sciences, etc., prescribing either good or evil (Is. X, 1; St. Thomas, q. 92, a. 1);

c) in a stricter sense it is the norm of human or moral acts, that they be right, remote and material; and thus every precept is called law (for example, the precept of a father, of a syndicate, of a master);

d) in the strictest sense it is the rule of human acts given to a community, prescribing to it what is right (Rom. II, 12 sq.; Prov. VIII, 15).

Now in each sense it can be considered both subjectively: 1) according as it is essentially in the legislator as in the one regulating, and thus it is taken altogether properly; 2) according as it is participatively in the subjects as in those regulated (Rom. VII, 23; II, 14); and 3) according as it is in the exterior sign (word, writing, book) expressing it (Lk. X, 26; Jn. XV, 25; I Cor. XIV, 21); and objectively, for the object of the law and the thing itself prescribed, for example, a condition of a contract (Jn. VII, 19; Rom. II, 13). In these last modes it is taken in a less proper sense and one derived from the first.

222. Definition of law. - Law taken most strictly and properly is usually defined: an ordination of reason for the common good, promulgated by him who has care of the community (q. 90, a. 4).

In this definition there is indicated:

1. The genus: ordination or disposition to an end through proportionate means, that is, not so much the ordering act itself as its term or the dictate constituted by it; but ordination is to be understood as strictly so called and perfect, that is, a) not merely directive but imperative and efficacious of obligation, and thus law differs from counsel, permission, prayer, etc.; b) of itself firm, stable, and perpetual.

2. The subject in which law essentially and originally inheres: reason, both because it belongs to reason to order or dispose and direct to an end, and to command; and because law is the rule of human acts, but the rule and measure of these is reason, because they are human insofar as they proceed from it, and good insofar as they are conformable to it; therefore law is something constituted by reason, and for this reason in the Scriptures it is called a lamp, light, illuminating precept, judgment, word, utterance (Prov. VI, 23; Ps. XVIII, 9; CXVIII, 105; CXLVII, 20).

1. Reason, namely, is the first principle of human acts; the first principle is the measure of the other things which pertain to this genus: "Law is a certain rule and measure of acts, according to which someone is induced to acting or is withdrawn from it. But the rule and measure of human acts is reason, which is the first principle of human acts; for it belongs to reason to order to the end, which is the first principle in things to be done. But in each genus that which is the first principle is the measure and rule of that genus... Whence it remains that law is something pertaining to reason" (q. 90, a. 1).

Yet, since the act belongs to practical reason, it presupposes a will regulated by that reason, which it intimates and expresses, and therefore it is everywhere called in the Scriptures the will of God (Ps. XXIX, 6, 8; XXXIX, 9; CII, 7; CXLII, 10; II Macc. I, 3; Mt. VII, 21).

Hence a) the essence of law can be conceived even if the will of the legislator is not known, as we shall see must be said of natural law; and conversely b) the will of a superior, in order to be able to be law, must be regulated by reason or conformable to reason; otherwise it would be rather iniquity than law, as happens in a positive law prescribing evil.

1. Precept is the continuation of judgment; therefore it must be conformable to the prior judgment. A precept not conformable to judgment is not of reason; whence law must be conformable to reason: "Reason has the power of moving from the will... For from this, that someone wills the end, reason commands concerning those things which are for the end (behold law). But the will concerning those things which are commanded, in order that it have the notion of law, must be regulated by some reason, and in this way it is understood that the will of the prince has the notion of law; otherwise the will of the prince would rather be iniquity than law" (a. 1, ad 3).

3. The object or end, by which it is distinguished from every other ordination:

a) to the good, because law is the rule and measure of human acts, but human acts ought to tend to the ultimate end, which is the happiness of human life and beatitude;

b) to the common good: for man is part of a perfect community, by which he can arrive at happiness; but every part is ordered to the whole, as the imperfect to the perfect. Therefore law regards order to common happiness, or to the ultimate end as a good to be obtained commonly.

Thus it is distinguished from the precept of a tyrant, who commands only for his own advantage, or from a simple precept and mandate, which can also be borne toward the good of one person or of some; for by law man is ordered as a part to the perfect community; but it would be disordered to order the good of the whole to the good of a part, since the part is for the sake of the whole and not conversely (III Kings XIII; Ezek. XXXIV, 8; Council of Toledo VIII, can. 10).

Hence a law has force:

a) which was borne from an evil end (of the one acting), provided it really tends to the common good (the end of the work);

b) which is harmful to some, for example, to one province, so long as, namely, it tends to the good of the community, because a part is subject to the whole and the common good is to be preferred to private good, if they cannot be obtained together;

c) which immediately fosters the good of one class of citizens, such as wards, clerics, soldiers, etc., but ultimately is ordered to the common good, insofar as this requires that such persons be defended with special care and favor or be kept in office.

4. The author and at the same time the subject upon which law is imposed: by him who has care of the community.

Thus it is distinguished from a mere precept, which can be imposed upon one person or even by a private person: for to order and procure the common good and to command the community belongs only to the community itself or to him who presides over it. But community is understood as perfect, that is, a society complete of itself, which has in its own order a complete end and sufficient means for pursuing it (the whole human race under God, the Church or the State with respect to the faithful or citizens). Hence laws are established by those who have the public and political power of jurisdiction for governing subjects (by declaring right, making laws, and punishing transgressors even with graver penalties), whether supreme over the whole community, or derived, or over only part of the community (for example, the Roman Pontiff and bishops); not, however, by those who have only private dominative power or economic power in an imperfect society, such as father, husband, master, superior of a religious house, pastor.

5. The essential condition: promulgated, that is, announced to the community.

223. Law differs from precept. - Every law is a precept, but not conversely; whence, as species differs from genus, so law differs from precept, and indeed:

a) in end: law is borne directly and primarily to the common good; precept can also be ordered only to the private good alone of the one commanding or the one commanded;

b) in author: a legislator is a public person enjoying public power of jurisdiction; one commanding can be a private person having only private power;

c) in the subject upon whom it is imposed: law is borne upon the community as such (whether the whole community, or a certain group, that is, determined persons taken collectively, for example, all minors, by reason of the common good); precept can also be imposed upon private persons taken individually;

d) in stability or duration: for although law can also be borne for a time and be abrogated, nevertheless from its nature, like the community itself, it is perpetual, and indeed in three ways: on the part of the law, because it endures until it is abrogated; on the part of the legislator, because it endures after he has died or been removed; on the part of the subjects, because it obligates not only those present but also those future. But a precept can from its nature be transitory, for example, given for one or another day or act, and obligate only those present, and, unless otherwise noted, it expires with the death or departure of the one commanding;

e) in extension or place: for law, since it is borne for the community, if this is local, does not obligate outside its territory; a precept can also be given to a person, and then it accompanies him everywhere.

Among moralists, however, precept is often taken in a restricted sense and as opposed to law, for that which is a mere precept and not law, namely, for a particular or temporary obligating rule.

224. Causes of law.

The cause of law is fourfold: 1) final: the common good; 2) efficient: the legislator himself; 3) material, namely, the object or matter about which it is concerned and concerning which it prescribes; 4) formal, that is, the essence, namely, the ordination or prescription itself and the mode in which it is made, in which can be considered formation, promulgation, acceptance, and interpretation.

225. Observation.

Since laws are the rule of justice or of the just in general, and ought to establish just things, it has been received in usage that the complex of them is called Right; hence we speak of natural, divine, human right, etc.

Law is defined by St. Thomas, 1-2, q. 90, art. 4: "A certain ordinance of reason for the common good, and promulgated by him who has care of the community." - It is said, 1st, an ordinance, because law is imposed by way of a rule and measure by which human acts are subjected to order; 2nd, of reason, because that ordinance ought not to be violent but to proceed from right reason; 3rd, for the common good, because the end of law, at least immediate and direct, is to provide for the community; 4th, by him who has care of the community, because to make laws is an act of jurisdiction; 5th, promulgated, because a rule cannot order except through application, and the application of this rule is made through promulgation. Hence it follows:

1st. There is present a manifold distinction between law and precept. For they differ, 1st, by reason of the one commanding, because a legislator is always a public person, but one giving a precept can be a private person; 2nd, by reason of the subject, because law is made for a community, but a precept even for a private person; 3rd, by reason of the end, because although ultimately the good of individuals redounds to the community, and conversely, nevertheless directly and immediately law regards the common good, a precept the private good; 4th, by reason of place, because law affects the territory, but a precept affects persons, and, as they say, clings to the bones; 5th, by reason of duration, because a precept ceases with the death of the one giving the precept, but law remains in force even after the legislator has died.

2nd. It follows that the properties or conditions of human law consist in this, that it be, 1st, possible, that is, accommodated to the morals and circumstances of persons, etc.; 2nd, honorable, that is, establishing nothing repugnant to right reason or to positive divine law; 3rd, useful, namely apt for procuring the common good; 4th, just, that is, according to the norm of distributive justice; 5th, promulgated, that is, applied to the community for directing actions.

3rd. Laws are instituted when they are promulgated. Thus the Code, can. 8, § 1. Cf. C. 3 D 14; c. 1. X, I. 5.

Law is distinguished in many ways; for it is:

1st. Divine or human, according as it has God or man as its immediate author.

2nd. Natural or positive, according as it is intimated by rational nature itself, or by a positive act of the legislator.

3rd. Ecclesiastical or civil, according as it is made by ecclesiastical or civil power.

4th. Moral or penal or mixed, according as it obliges under guilt alone, or under penalty alone, or under both at the same time.

5th. Affirmative or negative, according as it commands the placing of an act, or prohibits it. Hence it is also called preceptive or prohibitive.

6th. Simply prohibiting or invalidating or permitting, according as it renders an act illicit only, or invalid, or prohibits the agent from being disturbed.

Those laws alone must be held invalidating or inhabilitating by which either an act is expressly or equivalently established to be null, or a person to be incapable (Can. 11).

7th. Favorable or odious, according as it grants a benefit or favor, or brings in a burden or grievance.

8th. Written or preserved by use, according as it is made by written mandate, or introduced and preserved by custom alone.

9th. A personal or territorial law, according as it directly regards the person and then the territory, or directly the territory and then the person.

§ 2. A law is not presumed personal, but territorial, unless something else is clear (Can. 8).

It can, however, be both territorial and personal; a clear example of this was the chapter Tametsi of the Council of Trent.

I say: Law is rightly defined: « An ordination of reason to the common good, promulgated by him who has the care of the community ¹ ». So commonly with the Author. It is explained. ¹ Here q. 90, a. 4, c.

It is said 1° an ordination of reason, namely practical: by which is understood the act of command or rather its term or dictate produced by it, by which the superior prescribes something to be done or omitted. It is also understood an efficacious ordination, indeed not with respect to the work prescribed, since laws are continually violated, but with respect to the obligation which affects subjects, by which it is distinguished from counsel. Likewise it is understood a firm, stable and perpetual ordination, in this sense that it does not cease through the death of the legislator, by which it is distinguished from a precept, nor is it borne to the present alone, but also to those to come, although it could cease absolutely either through revocation, or through change of the matter, or through cessation of the adequate end.

It is said 2° to the common good. For the end of law is the common good: both because law is borne for the community, so to speak, which it directs to a good and honest end, and that end is the good of the whole; and because the end ought to answer to the principle, but the principle of law is public authority. Therefore the end of law ought to be the public and common good. And by this are excluded the mandates of tyrants and others that would be made for proper and private advantage.

It is said 3° by him who has the care of the community: because law is borne for the whole community; for thus the common sense apprehends it, and herein it distinguishes law from precept, which regards one or another, and this is evident by induction. The natural law regards all men; the old law the whole Jewish people; the new law the whole human race; all human laws, both civil and ecclesiastical, are directed to communities. Therefore law must be from him who has the care of the community. Understand a perfect community, which is a multitude of men under the governance of a president having political jurisdiction.

It is said promulgated: because it cannot direct nor oblige unless it becomes known through promulgation. Whether promulgation is of the essence of law, I will say presently.

From what has been said you will infer that law is something of reason ¹, presupposing however an act of the will. The reason of the first part is 1° because, as was said, it is defined as an ordination of reason; 2° because it belongs to law to command and to direct, but imperium is essentially of reason, as we proved in dissert. III, on Human Acts, art. 4; 3° because law is a certain rule and measure of human acts, but the rule and measure of human acts is reason: whence in Psal. CXVIII divine judgments, words, utterances are called, all of which pertain to the intellect. The reason of the second part is, because law pertains to practical reason and consists in the act of command. But imperium, although elicited by the intellect, nevertheless supposes an act of the will, namely election, from which it has the power and efficacy of moving to exercise. Therefore. Confer dissert. cit. And this is the reason why in Scripture and in law law is sometimes set forth under the name of will. ¹ Ibid., a. 1, c.