50 - 70 minutes readTREATISE III

TREATISE III

Law

Introductory. After the consideration of human acts we must turn our attention to the standards that determine their moral character. These standards are the eternal law and other just laws together with the individual conscience which applies them. Consequently we must first consider law, then conscience. This treatise on law which has the same importance in moral Theology as in Ecclesiastical and Civil law is divided into three chapters :

1. Definition and kinds of law in general ;

2. Divine law ;

3. Human law.

CHAPTER I. DEFINITIONS AND KINDS OF LAW

62. Definition. Law is an ordinance of reason for the common good promulgated by the person who has care of the community.

Ordinance of reason : whereby is signified the proper cause of law, namely the practical reason. Notice, however, that not every ordinance of better or worse than if he had not foreseen and intended such effects. For this added degree of morality it is not necessary that the effects be directly intended ; it is sufficient if they arc indirectly intended, that is to say if they could and ought to be foreseen. In this connection one should recall what has been said already in n. 23 concerning acts that are indirectly voluntary.

CHAPTER IV. MERIT IN HUMAN ACTS

59. Definition. Merit understood in its strict sense is that property of a good act which makes it deserving of reward ; in the concrete it is the good act itself as deserving reward.

Kinds,

1. Merit is twofold— condign and congruous. Condign merit is found in those good acts for which a reward is due in justice or at least because of some previous promise. Congruous merit is based on a certain equity or suitability ; v.g., a faithful servant has a strict claim in justice to a fixed salary (condign merit), but it is only fitting that he receive certain gifts from his master (congruous merit).

2 Both forms of merit already mentioned can exist in a perfect and less perfect form. Perfect condign merit or that which is based on strict justice is an act which is equivalent to the reward obtained which therefore cannot be withheld without a manifest violation of justice. Such merit exists in the case of a just salary agreed upon as due to the conscientious worker. In the supernatural order, only the actions of the God-man possessed this form of condign merit. Condign merit in its less perfect form is an act which to some extent is equivalent to the reward received. It is in this way that man merits eternal life because there does exist a certain equality between eternal life and acts based on supernatural grace Perfect congruous merit rests on a genuine equity between the act and its reward ; it is thus that a man in the state of grace who is a friend of God can merit the conversion of another. In its less perfect form congruous merit is a form of request ; thus a man can merit or rather request the grace of final perseverance.

60. Six conditions must be verified for the existence of supernatural merit :

1. The work or act performed must be free.

2. The work must be morally good.

3. The work must be done from a desire to please the reward-giver, namely God ; that is to say, there must be at least some influence of charity. .

4. The agent must be a wayfarer m this hte.

5. The agent must be in the state of sanctifying grace.

6. There must exist a divine promise.

61. The object of merit is that which can be merited in the sight of God by man’s acts.

1. A man in the state of grace can perform acts that possess condignmerit in reference to : a) eternal life, and b ) an increase of grace and glory (Council of Trent, Sess. 6, c. 32 on justification). A man in the state of mortal sin cannot perform any act that possesses condign merit or perfect congruous merit.

2. Understanding merit as congruous merit in its less perfect form a man in the state of grace can merit : a) final perseverance, b) restoration to divine friendship after a mortal sin that may be committed in the future. Understanding merit as congruous merit in its perfect form , man is able to merit : <j) temporal goods ; b) actual graces and the conversion of others.

3. The saying : “ God does not deny grace to anyone doing as much as lies in his own power ” must be understood in a limited sense of a person doing what is within his power with the help of actual grace.

TREATISE III

Law

Introductory. After the consideration of human acts we must turn our attention to the standards that determine their moral character. These standards are the eternal law and other just laws together with the individual conscience which applies them. Consequently we must first consider law, then conscience. This treatise on law which has the same importance in moral Theology as in Ecclesiastical and Civil law is divided into three chapters :

1. Definition and kinds of law in general ;

2. Divine law ;

3. Human law.

Chapter 1. definitions and kinds of law

62. Definition. Law is an ordinance of reason for the common good promulgated by the person who has care of the community.

Ordinance of reason : whereby is signified the proper cause of law, namely the practical reason. Notice, however, that not every ordinance of reason is a law, for even a precept 1 and a counsel may be termed ordinances of reason. For such an ordinance to be a law it is required (in addition to the points mentioned below) : a) that it be efficacious and binding ; b) that it be firm, stable and enduring.

For the common good : this is the necessary purpose of any law. Therefore the precepts of tyrants which are not directed to the welfare of society cannot be regarded as genuine laws. The common good may be promoted by law cither directly— by ensuring that the citizens live together in peace— or indirectly, in so far as certain laws (or privileges) have as their first result the welfare of the individual and promote the well-being of society through the welfare of the individual.

By the person who has care of the community : these words indicate the author of law or the legislator who is no other than he who has care of a society and this a perfect society. Accordingly the father of a family, for example, has no power to make laws in the strict sense of the word. Promulgated: because no ordinance of a superior can actually oblige his subjects unless it is sufficiently revealed to them. According to the more probable opinion promulgation is not part of the essence of law but is required for its integrity.

63. Kinds. Space docs not permit a complete catalogue of the different forms of law, but the more important divisions are the following :

1. In respect of its author, law is either divine or human depending on whether it is instituted by God or by man. Divine law is further subdivided into eternal, natural, and positive law : the Eternal law is identical with the eternal plan of the divine wisdom, Natural law is that which has been imprinted on rational creatures, and positive divine law is that law which has been promulgated explicitly by God in the Old and New Testaments.

2. In respect of its object, law is either affirmative or negative, in so far as it either enjoins or forbids some action : thus, honour thy parents is an affirmative law ; “ thou shalt not steal ” is a negative law. Affirmative laws are always obligatory but they do not bind to continuous fulfilment, i.e., they do not oblige their subjects to perform the prescribed acts every moment of the day ; negative laws are likewise always binding but in addition they never cease to bind, i.e., they oblige their subjects to refrain from forbidden acts on all occasions.

1 Even though a precept may impose as grave an obligation as law itself, nevertheless there are many differences between the two : a) the lawgiver must possess jurisdiction over his subjects, but this is not necessary for imposing precepts ; b ) the law has the common good as its motive, whereas a precept is frequently directed to the good of the individual ; c) a law of its very nature is permanent, a precept temporary.

CHAPTER II. DIVINE LAW

[Divine law is threefold in character : eternal, natural, and positive. Each must be considered in turn.

Art. 1. The Eternal Law

64. Definition. Two definitions of the Eternal law are usually given, those of St. Augustine and of St. Thomas. The definition proposed by St. Augustine reads : “ The eternal law is the divine reason or (and) the will of God commanding the preservation of the natural law and forbidding its disturbance.” St. Thomas defines the same law as follows : “ The eternal law … is the plan flowing from God’s wisdom directing all acts and movements.”

The Eternal law embraces both the physical and the moral orders of the universe, but it is chiefly concerned with the moral order. It is the fount of all laws which cease to be laws once they contradict the Eternal law.

Art. 2. Natural Law

65. Definition. Of all the various definitions given of Natural (Moral) law the best seems to be that proposed by St. Thomas : “ Natural law is nothing else than the rational creature’s participation in the eternal law.” This participation as produced by God is Natural law objectively considered ; as known by man it is Natural law subjectively received. It is termed “ natural ” law because : a) man is subject to it from the moment of his birth ; b) it contains only those precepts which are derived from the very nature of man ; c) it can be grasped by the natural light of man’s reason without the aid of divine or human authority.

66. The existence of a Natural law is denied not only by all atheists but also by those who refuse to admit the existence of any supreme objective norm of morality ; there are also many modem jurists who regard positive law as the only form of law properly so-called. Nevertheless the existence of Natural law is absolutely certain : 1. from Sacred Scripture : “ As for the Gentiles, though they have no (Mosaic) law to guide them, there are times when they carry out the precepts of the law unbidden, finding in their own natures a rule to guide them in default of any other rule ; and this shows that the obligations of the law are written in their hearts” (Rom. ii, 14-15) ; 2. from the words of Leo XIII (Encycl. Praestantissimum , June 20, 1888) : “ Such is the supreme law of all, the natural law which is imprinted and engraved on the hearts of all men ” ;

3. from the inner testimony of one’s own conscience ;

4. from the testimony of all races.

67. The subjects of Natural law are all men, no matter when or where they live. Therefore even children and the insane are subject to the Natural law, and in consequence it is wrong to entice them to transgress it, v.g., by telling lies, even though their transgression is not formal sin since they lack the use of reason.

68. The object of the Natural law is the moral order as known by human reason and which has to be observed by man. There are, however, three types of precepts in the Natural law :

a) Primary precepts — the most universal precepts — such as good must be done.

b) Secondary precepts which are easily recognised by all men, such as the precepts of the Decalogue.

c) Remote conclusions which are deduced by man’s reason with varying degrees of difficulty from the primary and secondary precepts, v.g., direct abortion is always forbidden.

69. The properties of the Natural law are : a) its universality, in so far as it binds all men without exception ; b) its immutability, inasmuch as it cannot be changed within itself ; c) its indispensability, since it does not allow either dispensation in the strict sense of the word or epikeia (equity). Scotus and others held that some dispensation from Natural law was possible, but such an opinion must be rejected since the Natural law is based on the essential character of man’s nature which cannot change. Instances brought forward of alleged dispensations in Natural law are not dispensations in the strict sense. Thus, for example, when God ordered Abraham to kill his son Isaac, he did not dispense him from observing the Fifth Commandment ; on the contrary, the supreme Lord of life at whose bidding many thousands of men die each day arranged for the cessation of Isaac’s life. A fortiori no created authority— neither the Supreme Pontiff nor any civil ruler — can dispense in Natural law.

1 Similarly epikeia (equity) in the strict sense of the word has no place in the Natural law. Epikeia is a favourable interpretation of the mind of the legislator where the law is in some way deficient. But since the Natural law has been instituted by the most provident of all legislators it could never be deficient.

70. Ignorance of the Natural law. a) In respect of the primary precepts ignorance is impossible in any man who has complete use of his reason, 1 How one explains the Papal power of dispensing in ratified marriages which do not permit of dissolution by Natural law is discussed in the author’s Man. Theol. mor. I, n. 155, since these principles are abundantly clear, b) In respect of the remote conclusions ignorance is possible not only in uneducated persons but also in the learned, so that it is possible to be ignorant that Natural law forbids the dissolution of all true marriages, c) In respect of the secondary precepts ignorance is possible for a time. St. Augustine thought that a certain woman at Antioch could believe that she ought to commit adultery in order to save her own husband from death. It is also evident from experience that many youths may be ignorant for a time of the evil nature of pollution. Such ignorance, however, cannot persist for ever because the secondary precepts of the Natural law (and particularly the precepts of the Decalogue) are so easily known that in the act of transgression man’s reason soon begins to rebel or at least to doubt. This again is evident from experience.

Art. 3. Divine Positive Law

71. Its necessity. In addition to divine Natural law there is also required divine positive law, 1. because the (secondary) precepts of the Natural law can be obscured by evil passion, custom and example, as is only too manifest from the history of pagan peoples ; 2. because the human race is destined for a happiness that is not merely natural but also supernatural, and it is impossible to attain to supernatural happiness without observing supernatural laws made known by God.

The divine positive precepts of the Old Law fell into three classes : a) moral ; b) judicial ; c) ceremonial : those of the New Law relate to morals (the exercise of the virtues) and especially to the offering of sacrifice and to the reception of the sacraments.

72. The subjects of divine law in the Old Testament were the Jews and their proselytes. In the New Testament all men whether baptized or unbaptized are included under its authority.

A dispensation in divine law can be granted only by the Pope when the law is based on a free human act. Thus it is possible to dispense from a ratified marriage as this is based on the free consent of the parties.

CHAPTER III. HUMAN LAW

This lengthy chapter is divided into nine articles with the following titles: 1. the author of human law; 2. its content; 3. its subjects; 4. the promulgation and acceptance of human law; j. its obligation ; 6. the fulfilment of law ; 7. interpretation of human law ; 8. its cessation (including dispensations, privileges, and customs) ; 9. civil law and its consequent moral obligation.

Art. i The Author of Human Law

73. 1. The Pope can make laws for the whole Church and for each part of it, and this he can do even independently of bishops or an Ecumenical Council.

At the present time the Pope usually exercises his legislative power through the various Roman Congregations which number eleven : 1) the Holy Office, 2) the Consistorial Congregation, 3) the Congregation of the Discipline of the Sacraments, 4) the Congregation of the Council, 5) the Congregation of Religious, 6) the Congregation for the Propagation of the Faith, 7) the Congregation of Sacred Rites, 8) the Congregation for Ceremonial, 9) the Congregation for Extraordinary Ecclesiastical Affairs, 10) the Congregation of Seminaries and Universities of Study, 11) the Congregation for the Eastern Church.

74. 2. Ecumenical Councils enjoy the most extensive power of making laws. Bishops gathered in an Ecumenical Council are not merely counsellors of the Pope but are legislators in the true sense of the word, and thus each one of them usually gives his signature to the acts of the Council in the form — “ definiens subscripsi.” The decrees of the Ecumenical Council are not laws unless approved by the Pope who has the power to change the approved decrees of any Ecumenical Council, since his power is greater than that of the Council. Thus Pius X altered the decree “ Tametsi ” passed by the Council of Trent.

75. 3. Bishops can make laws for their own diocese either by themselves, or through Plenary or Provincial Synods, or through diocesan synods. Bishops have been placed by the Holy Spirit “ to rule God’s Church ” (Acts xx, 28). In a diocesan synod the power to make laws belongs to the bishop alone and not to parish priests and other members of the synod ; in Provincial and Plenary Synods the legislative power resides in the body of bishops. A bishop can dispense on his own authority in the statutes of a diocesan synod but not in decrees of Provincial and Plenary Synods, except in individual cases and for a just cause (c. 291, § 2).

The same legislative power is enjoyed by an Apostolic Administrator permanently appointed (c. 315 § 1), an Apostolic Vicar and Prefect (c. 294, §1), and by Abbots and Prelates nullius who are in charge of at least three parishes (c. 323, § 1 ; c. 319).

4. There is little point in mentioning other ecclesiastical legislators since this question belongs to Ecclesiastical law rather than to moral Theology. However, it is useful to note than an abbess or any other superioress of nuns cannot make laws in the strict sense of the word since they have no ecclesiastical jurisdiction ; however, they can issue precepts and orders.

76. Legislative power possessed by civil authority. Since civil society is a perfect society and independent in its own sphere it must possess legislative power. This power is today usually exercised by Parliaments at least in those countries which are either republics or constitutional monarchies.

Art. 2. The Content of Human Law

77. The content of human law must fulfil three conditions according to St. Thomas : 1. it must be consistent with religion, viz., it must not contain anything contrary to divine law ; 2. it must be consistent with discipline, viz., it must conform to Natural law ; 3. it must promote human welfare, viz., it must promote the good of society.

All other conditions mentioned by various authors can easily be reduced to these three, such as that the content of the law must be good, just, possible, useful to the community, suitable to time and place, etc. There is one important question to be considered— whether human law can control : a) internal acts ; h) heroic acts.

78. Internal acts are either : a) completely internal, existing in the intellect and will and accompanied by external acts only accidentally or not at all, such as meditation, application of Mass, etc. ; or h ) partly internal, in so far as they proceed from the intellect and will but are directed to the production of an external act either of their nature or because of some moral law, such as attention in mental prayer, contrition in the Sacrament of Penance, internal dispositions for the worthy reception of the Easter Communion. Concerning these internal acts there is universal agreement on two points, but one question remains in dispute.

1. It is agreed that acts which are partly internal can be commanded by both ecclesiastical and civil law, since it is within the power of human law to decide that acts be performed in a human manner and without deceiving one’s neighbour. Now there are certain external acts prescribed by law which could be performed mechanically and in such a way as to deceive others if the internal intention of the agent were lacking. Thus, for example, if a witness compelled by law to take an oath were to withhold the internal intention of taking the oath, he would be acting after the manner of a machine and in such a way as to deceive others.

2. It is also agreed that civil authority cannot command acts that are completely internal since they make little contribution directly to the end of civil society, viz., its temporal welfare.

But it is fiercely disputed whether the Church has the power to command acts that are completely internal. St. Thomas seems to deny the existence of such power, and it is certainly denied by Suarez, Schmalzgrucber, Billuart, Benedict XIV, and St. Alphonsus calls the opinion denying this power the more probable one. In support of the possession of this power we may quote Sylvius, Elbel, Concilia, Noldin, Bouquillon, and many other modern theologians. The negative view rests on the following argument : the Church has the power to command anything which she can judge and punish. But she is incapable of judging and punishing acts which are completely internal since she is not aware of their existence. Therefore. . . . On the other hand the affirmative view is founded on two arguments :

1) the Church has the power to command everything that is necessary for the attainment of its own spiritual end. Now even those acts which are completely internal are necessary for this purpose. Therefore. . . .

2) In practice the Church does command certain of these acts ; thus, she orders parish priests to offer Mass for the people, she ordains the act of contrition for the gaining of indulgences. But is it conceivable that the Church would command something outside her competence (Nowadays in practice it is widely admitted by theologians that wholly internal acts can be commanded : 1. by the confessor in the internal forum ; 2. when the Church determines or explains divine law, such as in the reception of Easter Communion ; 3. when religious superiors impose lawful commands on their subjects bound by the vow of obedience. Thus, for example, a religious superior may order a priest who is subject to him to offer Mass for a definite intention. S.C. de Rel., die 3a Maii, 1914.

79. Heroic acts cannot be commanded by human law in the normal course of events since they are far too difficult and for most people almost impossible. Any law which ordinarily ordains excessively difficult or even impossible acts is no longer a useful law and thus ceases to be a law. Nevertheless there are two occasions when heroic acts may be commanded : 1. if the common good certainly requires such acts, v.g., fighting for one’s country ; 2. if someone freely obliges himself to perform even heroic acts, such as nursing sisters who freely tend the sick even though they endanger their own lives.

Art. 3. Subjects of Human Law

Introductory. It has been pointed out previously that every man is subject to divine Natural and positive law, whereas only those lawfully designated by their own legislator are subject to civil law. In the following paragraphs our sole concern is to determine the subjects of ecclesiastical law.

80. Principle. All baptized persons — and these alone — who enjoy the habitual use of reason after completing their seventh year are subject to purely ecclesiastical laws.

1. All baptized persons. This is evident from the Council of Trent, Sess. 7, can. 8, in the definition on Baptism: “If anyone says that baptized persons are exempt from the written or traditional precepts of the Church so that they arc not obliged to observe them unless they freely decide to do so, A. S.” cf. also the Code, c. 12. Consequently even heretics and schismatics who are validly baptized are subject to the laws of the Catholic Church, and thus arc subject to the matrimonial impediments arising from ecclesiastical law. However, in certain circumstances they are exempted either explicitly or tacitly from observing such laws. Thus, for example, in the “ Ne Temere ” decree Pius X expressly exempts heretics from the obligation of contracting marriage in the presence of their parish priest, in so far as this affects the validity of the sacrament. In the opinion of several theologians the Church tacitly exempts heretics and schismatics born and educated outside the Catholic Church from the laws of fasting, from assistance at Mass, etc., and from other precepts relating to the sanctification of the individual.

2. Only baptized persons . . . because those unbaptized cannot be subject to purely ecclesiastical laws since they are not members of the Church. But they may be subjected incidentally through contracting a relationship with a baptized person ; thus, for example, a pagan marrying a Catholic must observe the ecclesiastical law regarding the impediment of disparity of worship.

3. Enjoying the habitual use of reason . . . Consequently lunatics and children are not subjects of ecclesiastical law and thus, for example, may lawfully eat meat on Friday. Sometimes in addition to the mere use of reason there is required a further development in man, as, for example, in the law of fasting.

4. After completing their seventh year … So even if a child attains to the use of reason before the age of seven it would not be obliged by purely ecclesiastical laws, as will be discussed later.

Because of peculiar difficulties special consideration must be given to the position of children and of those below the age of puberty, of the legislator himself, of strangers and those of no fixed abode.

§ 1 . Children and those below the Age of Puberty Definitions. Before the completion of his seventh year man is an infant or child ; from the age of seven until he attains to legal puberty — for boys, the completion of their fourteenth year ; for girls, the completion of their twelfth year — he is called in canonical language “impuber” ; until the completion of his twenty-first year he is in his minority and afterwards attains his majority.

81. First Principle. Children are not subject to purely human laws, even though they have already attained to the use of their reason.

Today this opinion is regarded as certain and is found in the Code, c. 12 : “ Such persons are not subject to purely ecclesiastical laws . . . who have not yet completed their seventh year even though they enjoy the use of reason, unless the law expressly states otherwise.” The reason is that “ the legislator has regard for what is normal and happens in the majority of cases ” (St. Thomas). Consequently if in one instance a child attains to the use of reason before the age of seven, the legislator does not intend (generally speaking) to subject such a child to his laws.

Note. Precepts commanding the confession of mortal sin and the reception of Holy Communion are divine precepts and not merely ecclesiastical. Consequently a child who is certainly conscious of having committed mortal sin is bound to confess it even before the age of seven.

82. Second Principle. Persons below the age of puberty are subject to those human laws suited to their condition, provided they are not granted a special exemption by customary or written law.

Such persons are considered to possess sufficient habitual use of their reason. However, there are certain ecclesiastical and civil laws to which they are not subject — v.g., the law of fasting. Furthermore, it is laid down in the Code, c. 2230 : “ Persons below the age of puberty are excused from penalties that are incurred ipso facto, and they should be punished with disciplinary chastisement rather than by censures and other more severe vindictive penalties.”

§ 2 . The Legislator as Subject to his own laws

83. Introductory. Two distinctions must first be noted :

1. Law has a two-fold power : preceptive in so far as it urges man to observe the law, and coactive in so far as it punishes transgressors.

2. The legislator is either an individual, such as the Pope or a bishop, or a legislative assembly, such as a Provincial Synod or a Parliament.

First Principle. Each member of a legislative assembly is bound by its own laws.

Thus, for example, the members of a Parliament are subject to the laws that it passes ; bishops are bound by the laws made by the Provincial Synod, although they retain the power to dispense themselves in individual cases.

Second Principle. A legislator acting in an individual capacity is obliged indirectly by the preceptive power of his laws but not by their coactive power.

St. Thomas, when discussing this point says : “ A ruler is not bound by the coactive power of his laws, for no one can be compelled in the strict sense of the word by himself and it is the power of the ruler that is the source of the compelling force of law . . . But so far as the directive force of law is concerned the ruler is subject to law by his own will . . . Therefore regarding the judgement of God (viz., in the sphere of conscience) a ruler is not exempt from law in relation to its directive power.” (S. Theol. I II, q. 96, a. 5, ad. 3.) If the ruler himself did not respect his own laws his subjects would easily be scandalized and the power of discipline shattered.

§ 3 . Strangers and Persons of no fixed abode as Subject to Local Law

84. Definitions. A person acquires a domicile ; a) as soon as he settles in a place with the firm intention of remaining there permanently or at least indefinitely ; b ) by living in a place for ten years even though he has no intention of remaining there permanently (c. 92).

A quasi-domicile is acquired : a) when a person dwells in a place with the intention of remaining there for the greater part of a year provided that nothing calls him away ; b) when he has actually dwelt in a place for the greater part of a year (i.e., for six months and a day).

In canonical terms one who is living in his domicile is an “incola,” whereas a person living in his quasi-domicile is an “advena.”

A stranger is one who is absent from the place where he possesses a domicile or a quasi-domicile.

A person of no fixed abode (vagus) is one who possesses neither a domicile nor a quasi-domicile.

85. First Principle. Strangers are not bound by laws that are strictly territorial whether they apply 1. to the place of their domicile or quasi-domicile, or 2. to the places in which they are staying, except in three instances :

a) when otherwise scandal or some harm would be inflicted on the inhabitants,

b) when making contracts, c) when incurring penalties for the commission of some delinquency, (cf. c. 14 and c. 1566).

The first part of the principle follows from the fact that purely territorial laws are binding only on those who have a domicile or quasi-domicile in the territory concerned. This does not apply to personal laws.

With regard to the second part, it must be remembered that a stranger is not a subject of the legislator of the place where he is staying. However, exceptions must be made in the three instances quoted above where it is the Natural law rather than local positive law which gives rise to the obligation. The Natural law forbids strangers from causing scandal or injury to others, which would result especially if they did not observe the laws relating to contracts and to penalties inflicted for the commission of delinquency.

86. Second Principle. Strangers art obliged to obey those common laws which are observed in the place where they are actually staying, even though in the place of their domicile or quasi-domicile these laws have been legally abolished or suspended (c. 14, § i, n. 3).

The reason is that a dispensation granted to a particular territory does not extend beyond that territory. Thus a German travelling to Rome in Holy Week cannot avail himself of the dispensations granted to Germans.

87. Third Principle. Strangers are entitled to use the privileges and indults of the territory where they are staying.

Such privileges and indults are considered as being granted to everyone in that territory, not merely to the residents but also to its visitors (cf. c. 881, § 1 ; c. 927).

88. Fourth Principle. Persons of no fixed abode are bound by all the laws of the place where they actually reside (c. 14, § 2).

Otherwise such persons would be better placed than anyone else, which is absurd. In some matters, especially with regard to the celebration of marriage, special laws have been laid down for persons of no fixed abode.

Art. 4. Promulgation and Acceptance of Law

89. Definition. The promulgation of law is the authentic publication of law by the legislator. Therefore promulgation differs both from the general publication of the law and from its recognition by others, since these are private matters and not authentic.

The necessity of promulgation. Properly speaking, promulgation does not belong to the essence of law, and yet no human law is binding on its subjects until it is authentically promulgated. Thus the Code states (c. 8, 1) : “Laws begin to exist when they are promulgated.”

It is not required that the law be declared to each individual or that it be actually known by everyone ; it is sufficient that the subjects be capable of obtaining knowledge of the law.

According to present discipline the laws of the Holy Father are promulgated in the periodical “ Acta Apostolicae Sedis,” and such laws begin to bind on the completion of three months from the date attached to the copy of the “ Acta ” in which they appear (c. 9).

The acceptance of law by the people is not required for the existence of obligation, so far as human laws are concerned.

Consequently Alexander VII condemned the following proposition (28) : “ A people does not commit sin even if for no reason at all it refuses to accept a law promulgated by its ruler.”

The reason is that the legislative power of a lawful ruler does not depend on the people.

Ecclesiastical laws do not require ratification by civil authority since the Church is a perfect society, autonomous and completely independent of civil government. And thus the so-called “ royal assent ” is not required for either the promulgation or the acceptance of ecclesiastical law. But sometimes in a Concordat the Church docs freely grant to civil government some right of intervention in ecclesiastical affairs.

Art. 5. The Obligation of Human Law

90. Existence of obligation. It is certain that every just human law — both ecclesiastical and civil — imposes an obligation in conscience. St. Paul says : “ He who resists authority resists the command of God. But they who resist in this way merit condemnation for themselves. . . . Therefore of necessity be obedient not merely because of anger but also for the sake of conscience ” (Rom. xiii, 1 sqq.).

91. Nature of the obligation. The obligation of human law is : 1. grave or slight, 2. direct or indirect — that is to say, caused by the law itself or by circumstances attached to the law. Whether the obligation of individual laws is grave or slight depends on their content and purpose and also to some extent on the intention of the legislator who may decide that a law relating to some matter which in itself is grave should be binding only under a light obligation. However, no legislator has the power to attach a grave obligation to a law relating to some matter which is in every respect of slight importance, since this would be to impose an intolerable burden on his subjects and such a law would not be of genuine benefit to society. In practice the gravity of the obligation is to be assessed from :

a) the words used in the law ;

b) the gravity of the punishment with which transgressors are threatened ;

c) die interpretation of learned men and the practice of the subjects.

92. Scholium. Formal contempt of the law. If anyone transgresses a law (even if in itself it binds only under slight obligation) through formal contempt, he commits grave sin, because such contempt implies a serious revolt against lawful authority. Formal contempt is not to be imputed : a) if the law is broken through passion or weakness or temptation ; b ) if anyone treats with contempt or as of little value something that is commanded but not precisely because it is commanded ; c) if the transgressor lacks respect for his superior not in his position of authority but as a private individual, v.g., because of his worthlessness or other failings. In practice formal contempt rarely exists.

93. The extent of obligation. The obligation of law extends to :

1. knowledge of the law, so that the subjects are obliged to possess sufficient knowledge of positive laws in proportion to their position and ability ; 2. the use of ordinary means which ire proximately necessary for the observance of the law.

The obligation extends to the use of ordinary and proximately necessary means, not to the use of extraordinary and remote means. This obligation includes the obligation of avoiding the proximate obstacles to the fulfilment of law. Consequently no one is permitted to do anything which would prevent the proximate fulfilment of law without a proportionate reason ; thus, unless there existed a proportionate reason, one would not be justified in undertaking on a fast day some form of heavy work which would prevent the observance of the fast.

Law is sometimes indirectly binding in conscience, as happens a) in penal law ; b) in invalidating laws ; c) in laws based on a false presumption. Each of these must be considered separately.

§ 1 . Penal Laws

94. Definition and Kinds. Penal law is a form of law which directly and immediately binds under pain of punishment and not under pain of incurring a moral fault.

The rules of the majority of Religious Institutes are considered to be penal laws which do not oblige directly under pain of either mortal or venial sin ; the same is true of many of the ordinances of civil government. It is customary to distinguish between laws that are entirely penal and laws of a mixed character.

Authors do not concur in their explanation of laws that are entirely penal. D’Annibale and others maintain that such a law is one which contains a precept and a punishment in a disjunctive proposition, so that one is free either to observe what is commanded or undergo the punishment attached ; for instance, recent excise laws forbid the entry of tobacco into France, otherwise one must pay a certain sum of money. Therefore a man is free either to refrain from bringing in tobacco or to pay the duty. — Billuart, Koch and others propose what appears to be the more correct view : a purely penal law is one which commands that something be done or omitted and imposes on transgressors a penalty but no theological fault ; that is to say, the fault which is determined and punished is of a juridical character.

A law which is not entirely penal imposes at the same time an obligation which is truly and directly of a moral character and also a temporal punishment on transgressors, v.g., clerics holding benefices are bound to say the Divine Office, and if they neglect this duty they not only commit sin but also lose the fruits of the benefice. — In addition to penal laws there are also other human laws which are purely preceptive, which impose a moral obligation without any accompanying temporal punishment, such as the law of hearing Mass on Sundays and on Holydays of Obligation.

95. The existence of laws that are purely penal in character is denied by some authors, but the contrary view is the one most commonly held by theologians and by the general consent of the people who regard many civil laws as having no direct obligation in conscience, since the legislator can make sufficient provision for the common good by means of purely penal laws without directly binding the consciences of his subjects.

The transgression of a penal law is an indirect cause of moral fault, a) if it was due to culpable neglect or inordinate passion or formal contempt ; b) if the transgressor refused to accept the punishment justly imposed. — Penalties ferendae sententiae are not incurred prior to a special sentence of the competent judge ; penalties incurred ipso facto, if they are negative or privative in character, must be endured normally speaking without any further declaratory sentence of the judge, but if positive they are not incurred unless the judge has previously determined this in explicit terms.

Notb. The Code (c. 2218, § 2) states : “ Circumstances which excuse from every form of imputability, and also those excusing from grave sin, similarly excuse from incurring any penalty whether latae or ferendae sententiae even in the external forum, provided that the excuse is valid in that forum.” Consequently as often as a delinquent does not commit grave sin, v.g., because of inculpable ignorance, fear, surge of passion, he does not incur any ecclesiastical penalty attached to such an offence. But nothing prevents small penances being imposed on the delinquent.

§ 2. Invalidating Laws

Introductory. Our discussion must be limited to human law and does not include those precepts of Natural and divine law which render acts invalid ; thus, for instance, the diriment impediments of consanguinity in the direct line and of an existing marriage bond always produce their effect of invalidity and no human authority is capable of dispensing from them.

96. Definition. An invalidating law is one which renders an act void or at least declares (expressly or equivalently) that the act can be rescinded because of some defect in the act (c. 11).

Consequently an invalidating law differs from a prohibitory law ; the latter renders acts contrary to the law unlawful, whereas the former renders such acts void or deserving of invalidity. — An invalidating law renders an act void, 1. either by the law itself, and then the act is null and void from the beginning, or 2. after sentence by a judge, when the act remains valid until the judge passes sentence.

97. The effects of an invalidating law in the external forum are not avoided by ignorance, good faith, or fear on the part of the agent (cf. c. 16). Thus, for example, diriment impediments which exist in fact invalidate a marriage even when the parties are in good faith.

The effects of an invalidating law in the internal forum do not seem to be incurred prior to the sentence of the judge if one considers civil law. The reason is that although the civil legislator certainly possesses the power to invalidate certain acts of his subjects in the internal forum, vet he is rightly presumed not to impose such an obligation since the purpose of the law can be achieved by the civil pronouncement of invalidity in the external forum. However, once the judge has passed sentence such laws are binding in the internal forum also. Ecclesiastical invalidating laws render the act invalid or capable of being rescinded in the internal forum even before sentence by the judge. Therefore, in brief : an ecclesiastical law which invalidates an act through the law itself destroys all the value and obligation of the act both in the external and internal fora. Thus, for example, betrothals which do not observe the form prescribed by law have no binding force either in the external forum or in the internal forum (c. 1017, § 1).

§ 3. Laws based on False Presumption

98. Definition and Kinds. In the present context presumption means a conjecture derived from reasonable signs.

Presumption may be of common danger or of a definite fact. In the first instance the legislator presumes the existence of some common danger in certain circumstances ; thus a legislator presumes that there is the danger of perversion in the reading of evil books and so prohibits the reading of such books. The second type of presumption is present when a legislator or judge presumes from certain indications the existence of a fact which cannot be proved in the strict sense of the word. — A further division of presumption is discussed in the author’s Manuale Theol. mor.

99. First Principle. A law based on the presumption of common danger always obliges even though in an individual instance tlte danger is absent (c. 21). The reason is two-fold : a) even though the purpose of a law is not verified in a particular instance the law itself does not cease, as we shall discuss at greater length in a later paragraph ; b) if a law based on presumed danger ceased to bind, the way would be open for many dangerous illusions. Hence the law prohibiting the reading of evil books still holds even for a person who considers himself free from the danger of perversion in reading such books.

Second Principle, a) A law based on the presumption of a fact obliges in the external forum until the fact is proved false ; b) such a law does not oblige in conscience if the fact is falsely presumed.

The first part of the principle is based on the truth that a presumption must be taken for granted in the external forum until it is proved to be false.

The second part of the principle is an adaptation of the common axiom : presumption must yield to truth.

Art. 6. Fulfilment of Law

The following statements arc easily understood.

100. 1. More is required in order to obey the law than not to transgress it, since in order not to transgress the law one must simply refrain from doing anything contrary to the law, whereas to obey the law there is required an act that is both human and moral.

2. To fulfil the law it is not necessary that what is prescribed should be performed under the inspiration of charity or of any other virtue ; the substance of the act and not its virtuous performances is sufficient.

3. To fulfil the law it is not necessary that one have the intention of fulfilling it, but one must have at least the implicit intention of doing what the law commands — or, more briefly : material and not formal obedience is demanded for the fulfilment of law.

4. Several laws which are not formally but only materially different can be fulfilled by one and the same act. Precepts relating to the same matter are formally different when their motives are mutually exclusive ; otherwise they are materially different.

5. Several laws relating to different matters can be fulfilled by one and the same act, a) if their content is not mutually exclusive, and b ) if the legislator has not forbidden this method of fulfilment.

101. Scholium. Time for the fulfilment of an obligation. Since a law usually determines not only what is to be done but also when it is to be done, the following rules are to be observed :

1. If a time limit was imposed on the understanding that with the passing of time the obligation would also cease, then the law must not and cannot be fulfilled outside of this time (i.e., neither before nor after this time).

2. If the time limit was imposed in order to urge the fulfilment of the obligation, then even though the time has passed, the obligation to fulfil the law as quickly as possible still remains. Thus, for instance, a man who does not receive Holy Communion during Easter (whether this is due to his own fault or not) is still bound to receive it afterwards as soon as possible.

3. If the legal time has already commenced and one foresees that later on he will be prevented from fulfilling the law he is bound to fulfil the law before the hindrance occurs. Thus, for example, if a priest foresees in the morning that he will be unable to recite his Office after dinner, he must recite the entire Office in the morning, since the time for the observance of this law has already commenced. On the other hand a priest who foresees that he will not be able to recite Matins and Lauds on the following day is not strictly bound to anticipate, since the time for the observance of the law has not yet commenced and no priest is obliged to avail himself of the privilege of anticipating.

Art. 7. Interpretation of Law

Interpretation of law is necessary for two reasons : 1. law is sometimes obscure ; 2. doubts may arise whether the law extends to some extraordinary case. In the first instance one makes use of interpretation in the normal sense of the word ; to meet the needs of extraordinary cases equity (epikeia) is used.

§ 1 . Ordinary Interpretation

102. Definition and Kinds. Interpretation is defined as the genuine explanation of a law.

In respect of its author interpretation of law is either authoritative, customary, or doctrinal, according as it is given by competent juridical authority (c. 17, § 1), or by custom lawfully introduced amongst the people, or by learned and skilled persons. Similar to customary interpretation of law is judicial interpretation or jurisprudence— that is to say, an authoritative explanation derived from cases judged in a similar way, as happens in law-courts.

In respect of the character of the interpretation, it is either comprehensive, extensive, or restrictive, depending on whether it explains the actual content of the law, or extends it beyond its present limits, or restricts the law more closely than has been customary up to the present.

103. Principle, a) Authoritative interpretation given in the form of law has the force of law and consequently imposes a similar obligation ; b) customary and doctrinal interpretation must be accepted and observed if they are allowed in practice without any protest from the legislator who could easily revoke such an interpretation if he so desired.

The reason for the first part of the principle is that an authoritative interpretation proceeds from a competent authority who has the power to impose even a new obligation. 1

1 Oil this matter the Code states (c. 17, §§ 2 and 3) : “ Authoritative interpretation given in the form of law has the same force as the law itself ; and if it merely declares the meaning of the words of law that are certain, it does not require a new promulgation and reacts on past actions ; if the interpretation restricts the second part is based on the well-known principle : custom is the best interpreter of law’s (c. 29), and learned conscientious men are specially equipped to grasp the meaning of law.

104. Rules to be followed in doctrinal interpretation :

1. Special attention must be given to the immediate purpose of the law and to the mind of the legislator.

2. The words of the law are to be understood in their natural sense having regard for the context and their position in the text (c. iB), unless this gives rise to something which is rightly presumed to be contrary to the intention of the legislator.

3. Unfavourable laws are to be restricted, whereas favourable laws should be extended as far as possible.

4. Where obscurity exists, only the minimum is required to satisfy the law.

5. A later particular law abrogates a previous general law, but the reverse is not true : a later general law does not abrogate an earlier particular law, unless this is made quite clear in a particular instance.

§ 2. Epikeia (Equity)

105. Definition. Epikeia (or equity) is a favourable and just interpretation not of the law itself but of the mind of the legislator, who is presumed to be unwilling to bind his subjects in extraordinary cases where the observance of his law would cause injury or impose too severe a burden.

Equity (which is an act of legal justice and belongs to that part of prudence which is called “ gnome ”) differs from ordinary interpretation, a) in that the latter is intended to remove obscurity from the law, whereas the former excuses from the observance of a law that is not obscure on the presumption that such is the legislator’s intention, and b) in that ordinary interpretation takes into account every instance of the application of the law, whereas equity applies to an individual case only.

106. Rules for the use of epikeia.

1. Epikeia applies only in those cases where the law would become harmful or excessively burdensome and difficult to observe (St. Alphonsus).

2. Epikeia cannot be used lawfully :

a) if the superior with power to dispense from the law can be approached without difficulty ; or extends the law or explains a doubtful law, it does not react on past actions and it must be promulgated. An interpretation given by way of judicial sentence or by rescript in some special case does not have the force of law and binds only the persons and affects only those matters for which it was issued.”

b) in matters concerning an evident precept of Natural law, as also in questions relating to an invalidating law of the Church — this latter being the more probable opinion.

Art. 8. Cessation of Law

107. Introductory. Either the entire law ceases or else the obligation of law may cease for a time. The obligation attached to law may cease for a time in one of three ways : a) its subjects may be incapable of observing it ; b) the superior may grant a dispensation ; c) there may exist a contrary privilege. The law itself ceases, a) through revocation, b) through failure of its purpose, c ) through contrary custom. We must now consider each of these points in turn.

§ 1. Cessation of Obligation through Impossibility

108. Definitions. Impossibility is either absolute or moral depending on whether a person finds it completely impossible to observe a law or can only do so with difficulty.

Principle, a) Absolute impossibility excuses from the observance of any law ; b ) moral impossibility does not excuse from the observance of Natural law, c) but it usually excuses from positive law (with the exception of invalidating laws).

The first part of the principle rests on the axiom : no one is obliged to do the impossible.

The reason for the second part is the intrinsic evil of every offence against the Natural law, and all persons are bound to do all in their power to avoid whatever is intrinsically evil. Thus, for example, it is never lawful even in extreme need to tell a lie or procure an abortion directly. If an occasion arises where there is a conflict between two precepts of the Natural law, such as might arise between the prohibition against theft and the obligation to protect oneself in extreme need, then the higher law takes precedence over the lower.

The third part of the principle derives its truth from the fact that moral impossibility makes an act so difficult that the majority of men would never or only very rarely perform such an act which in itself is not of obligation. Therefore if the legislator continues to impose an obligation on his subjects who are morally incapable of observing the law in spite of the fact that he foresees that his law will be frequently ignored, the law becomes detrimental to the common good and thus ceases to be law. This is embodied in the well-known principle : “ No positive law obliges where there is grave inconvenience.” This applies also to divine positive law. Therefore, for example, a penitent is excused from the divine law requiring integrity in confession if there is sonic grave external inconvenience.

Accidentally (especially if it is closely related to Natural law) a positive law may sometimes oblige even when there is the greatest inconvenience, supposing that the violation of that law would result in hatred of religion or in serious injury to the community, as is evident in the case of Eleazar refusing to eat the meat he was offered.

109. Query. Is it permissible deliberately to make oneself incapable of fulfilling some law ? One must here use the rules that apply to acts that are indirectly voluntary. But generally speaking it is permissible to produce situations that excuse from the observance of law — that is to say, a person is allowed to withdraw himself from the jurisdiction of human law. Thus, for instance, it is lawful to leave one territory in order to avoid the particular laves of that place, or one may go into another diocese to confess a reserved sin.

§ 2. Cessation of Obligation through Dispensation

110. Definition and Kinds. A dispensation is a relaxation of the law or of the obligation of law in particular cases granted by competent authority for a special and sufficient reason (cf. c. 80).

Dispensations may be :

1. valid or invalid, depending on whether they produce the effect intended or not :

2. lawful or unlawful, according as they verify all the conditions (both essential and accidental) demanded by law or lack certain accidentals :

3. subrepticia or obrepticia, depending on whether in the request for the dispensation some truth is concealed which ought to be revealed, or some false declaration is made. Certain authors identify these two kinds of dispensation.

111. The author of a dispensation is the legislator himself or his delegate or his successor or his superior (c. 80).

1. The Pope may dispense : a) in all ecclesiastical laws ; b) in the divine law in those cases where the law is based to some extent on the human will, as in the case of vows, promissory oaths, ratified marriages.

2. Bishops have the power to dispense : a) in all the laws and special statutes of their own diocese, unless they have been enacted in detail by the Pope for a particular territory ; in individual cases and for a just cause they may dispense from decrees of Provincial Synods (c. 291, § 2); b) in the general laws of the Church provided i) the case is urgent, or ii) the case is of frequent occurrence and concerns some matter which is not of such great importance, v.g., the law of abstinence, or iii) the law is doubtful and the doubt is one of fact and the law is one in which the Pope usually dispenses (c. 15), as in doubts regarding bodily fitness for ordination ; c) from certain general laws where the bishop has the right to dispense from law, as he has in granting dispensations from certain irregularities, from the banns of marriage (c. 82). — By delegated authority bishops usually possess wider powers of dispensation.

3. Religious Superiors have in virtue of their ordinary authority the power to dispense a) from laws and statutes of their own institute, unless they are specially prevented from doing so in some of the statutes ; b) from general laws for their own subjects, in the same way as bishops, since religious superiors (of clerical exempt institutes) possess a jurisdiction similar to that possessed by bishops over their subjects (cf. c. 990, 1245).

4. Parish priests cannot dispense, generally speaking, in virtue of their ordinary power in ecclesiastical law (c. 83) ; but they have the power to dispense in some special cases, v.g., from the general law of fasting and abstinence, from the observance of Feast days (c. 1245, § 1).

5. Religious confessors possessing the privileges of Mendicants have the power to dispense :

a) from all vows, with the exception of i) public vows, ii) vows made in favour of a third party, iii) two reserved private vows, namely those of perfect chastity and of entering a religious Order in which solemn vows are taken, if they are made unconditionally and after the completion of the eighteenth year of age (c. 1309) ;

b) from a promissory oath ;

c) from all irregularities in which bishops have the ordinary power to dispense ;

d) from a private vow of chastity, when either of the parties to a marriage makes known this vow in confession immediately before the marriage and there is no time to seek a dispensation from the competent authority.

112. 6. All confessors in virtue of common law have the power of dispensing in urgent secret cases when it is impossible to approach the bishop and there is imminent danger of grave injury or defamation,

a) from all irregularities arising from delinquency, with the exception of i) any irregularity arising from voluntary murder and abortion, ii) any irregularity brought before a court of law. — This dispensation may be granted in order that the penitent may lawfully exercise those Sacred Orders already received but it cannot be granted to those about to receive Orders (c. 990) ;

b) from the infliction of punitive penalties (c. 2290), at the same time enjoining the obligation to have recourse to the competent superior within a month ; if this recourse is morally impossible, the confessor may grant an unconditional dispensation ;

c) from all marriage impediments arising from ecclesiastical law, with two exceptions, viz., the impediments that arise from the priesthood and from affinity in the direct line if this affinity has arisen from a consummated marriage (c. 1045).

113. Persons to whom dispensations may be granted are those who in some way are subject to the jurisdiction of the individual granting the dispensation, since the act of dispensing is an act of jurisdiction which cannot be exercised in respect of those who are not subject. N.B. — In some way subject : consequently according to the present discipline of the Church dispensations can sometimes be granted to strangers and to exempt religious by the diocesan bishop or by a confessor.

114. Three conditions for the granting of dispensations were laid down by the Council of Trent (Sess. 25, c. 18 de reform.) : 1. there must be a sufficient reason ; 2. this reason must be known ; 3. the dispensation must be granted free of charge. 4. There must exist a sufficient reason. The reasons for granting a dispensation are : a) internal (the difficulty of observing the law) or external (the common good) ; b) canonical which by themselves are sufficient for granting a dispensation, or impelling which by themselves are insufficient but support other reasons.

115. Principle. Any dispensation granted without a sufficient reason is a) always unlawful, no matter by whom it is granted ; b ) invalid, if it was granted in virtue of delegated authority (c. 84, §1).

The reason for the first part of the principle is that a dispensation is an injury to the law which cannot be inflicted without sufficient reason. In relation to the second part it must be noted that a delegated person exceeds the sphere of his delegation in granting a dispensation from the law of his superior without sufficient reason.

When it is doubtful whether the reason for a dispensation is sufficient, the individual is allowed to ask for the dispensation and the superior may validly and lawfully grant it (ibid. § 2).

2. In order that the dispensation be lawfully granted the reason for the dispensation must be known. So something more is required than the mere existence of a sufficient reason ; the person granting the dispensation must know its character, otherwise he would be acting irrationally. Rules are laid down for the amount of knowledge required in the external forum, but no such directions exist in respect of the internal forum.

3. The gratuitous granting of dispensations is necessary so as to avoid all suggestion of simony. Nevertheless some remuneration can be demanded to meet Chancellery expenses. Ordinaries and their officials who ask for a fee on the occasion of granting a dispensation are bound to restitution (c. 1056).

116. Defects in the granting of dispensations can be reduced to three : 1. lack of jurisdiction (requisite authority is lacking) ; 2. lack of justice (absence of sufficient reason) ; 3. some defect of freedom in the will of the legislator through error or fear. We have spoken already of the first two defects ; something must now be said about error and fear.

1. Error or deception may arise in the mind of the legislator in the granting of dispensations hi one of two ways : either he is told something false (dispensatio obrepticia), or else some truth which he ought to know is concealed from him (dispensatio subrepticia). — This error in the mind of the legislator invalidates the dispensation unless a) the dispensation was given in the form of a Motu proprio, or b) the error was concerned with purely accidental circumstances.

2. Fear does not invalidate a dispensation unless it is grave and inflicted unjustly. Some authors hold the more correct view that no form of fear can invalidate a dispensation since all acts performed through grave fear even when it has been inflicted unjustly are valid acts, unless the law expressly states otherwise (c. 103 § 2).

117. Cessation of dispensations, granted for a definite period, may be effected a) by the legislator himself, b ) by the person dispensed, c) by the cessation of the purpose of the dispensation.

1. On the part of the legislator a dispensation ceases a) through lawful revocation, b) through the death (physical or moral) of the legislator, if the dispensation contained the clause, “ ad bene placitum nostrum,” or something similar (c. 86 and 73).

2. On the part of the person dispensed a dispensation ceases by legitimate renunciation. In order that this renunciation be lawful it is necessary a) that it should not harm the rights of the community or those of a third party, b) that the grantor accept the renunciation. — Dispensation does not lapse through failure to use it, provided it is not a burden to others ; if its non-use is prejudicial to others, it can cease through lawful prescription against it.

3. On the part of the purpose of the dispensation, the dispensation ceases only when its sole motive cause has completely ceased. It is difficult to lay down any general rule regarding this form of cessation, since in dispensations relating to vows or fasting or marriage impediments etc., dispensations do not cease in the same way once their purpose ceases to exist ; for example, if Bertha was dispensed from her vow of chastity in order that she might marry for the sole purpose of making her child legitimate, the dispensation ceases if the child dies before the marriage.

118. Interpretation of dispensations, i. The faculty to dispense generally is to be interpreted widely since it is a favour. But the faculty to dispense in a particular case must be interpreted in its strictest sense (c. 85).

2. Dispensations themselves are normally to be interpreted in a strict sense, since a dispensation represents an injury to the law (c. 85). However, wider interpretations can be given to dispensations given by Motu proprio, or in the interest of the common good or for the entire community, or if the dispensation has been granted by the law itself and has been inserted in the Code of Canon Law.

§ 3. Cessation of Obligation through Privilege

1 19. Definition. Privileges may be understood objectively or subjectively, and each of these may be taken in a wide or strict sense.

A privilege considered objectively and in its wide sense is any particular law. In this sense of the word the laws of bishops and of parish priests etc., are called privileges.

A privilege considered objectively and in the strict meaning of the term is a private law granting a special favour which is contrary to or superadded to a general law — or more briefly : a private favourable law.

A privilege viewed subjectively is nothing other than the power of acting in accordance with a privilege understood in its objective sense (either widely or strickly considered).

120. Kinds. Among the many divisions listed by authors the following seem the more important.

1. In regard to its subject a privilege is either personal or real depending on whether it primarily concerns a person or a thing (v.g., a place, an office, a confraternity, etc.). Similar to such privileges are the faculties normally delegated to bishops, religious superiors, etc. Consequently these faculties do not cease with the death or removal of the person so privileged (c. 66, § 2).

2. In regard to its object a privilege may be favourable or unfavourable depending on whether it grants a favour which prejudices no one else or whether at the same time it imposes a burden on others. An example of an unfavourable privilege would be an exemption from the payment of income tax which would necessitate a more severe tax on others.

3. In regard to its motive a privilege may be either gratuitous or remunerative in so far as it is granted either out of pure generosity on the part of the grantor or as a reward for the merits of the individual.

4. In regard to the manner in which it is granted, a privilege may be given “Motu proprio ” or “ ad instantiam ,” depending on whether it is granted as a very special favour to be interpreted widely or in answer to a previous request.

121. Privileges may be acquired by direct grant, communication, prescription, or custom (c. 83).

Only those who have the power to make laws are able to grant privileges directly, since privileges are private laws.

By communication are acquired privileges granted to one moral person by another moral person to whom has been granted by pontifical indult the power of communicating privileges to the former. There used to exist such communication of privileges between different religious orders, but this power has now been removed for the future (c. 63, § 1).

Privileges may also be acquired by prescription or by custom which are likewise means of abrogating laws. cf. n. 127.

122. The interpretation of privileges is most difficult. What has been said already in reference to the interpretation of law can be applied more or less to the interpretation of privileges. Generally speaking, favourable privileges are to be interpreted widely, whereas unfavourable privileges are to be interpreted in their strict sense (cf. c. 68).

Failure to use privileges. Favourable privileges granted for the personal benefit of an individual need not be used and can be freely renounced, because favours must not be restricted. But privileges affecting the welfare of the entire community or of some State cannot be renounced and must be used. Thus, for example, a cleric could not renounce the privilege safeguarding him from personal injury (privilegium canonis).

§ 4. Cessation of Law itself

123. The law itself can cease in the following ways : 1. through revocation by lawful authority ; 2. through the cessation of its purpose ; 3. through contrary custom. A special paragraph will be devoted to custom and its influence on law.

A law may be revoked completely or partially in the following ways : a) the law may be completely revoked : abrogation ; b) the law may be partially revoked by competent authority : derogation ; c) an addition may be made to a law already in existence : subrogation ; d) one law may be replaced by a contrary law : abrogation.

The power to revoke a law completely or partially is invested in those having the power to make that law. The general practice to be followed in this matter is the following : A general law revokes completely or partially all previous contrary general legislation, but it does not revoke particular laws unless this is explicitly stated.

The first part of the principle is evident from the fact that contraries exclude each other.

The reason for the second part is that since a particular law was intended from the moment of its promulgation to be an exception to some general law, it is considered to endure as long as it is not clearly and undoubtedly revoked (cf. c. 6, n. 1 ; c. 22).

124. With the complete destruction of the law’s purpose or adequate motive the law itself ceases to exist. Thus, for example, if a bishop orders prayers for the recovery of the Pope who is sick, once the Pope dies the prayers cease. If, however, the purpose of the law ceases to be verified in a particular case or for an individual, the law itself continues to bind, unless the observance of the law would cause great inconvenience.

§ 5 . Custom

125. Definition. Custom (as understood here) is a right or law introduced by the repeated behaviour of a community with the consent of the legislator. In the treatise on Penance we shall be considering custom in its material form, namely, as a habit acquired by the repetition of acts. In this section custom is considered as interpreting, abrogating or creating law. Custom is not the same as prescription ; the distinction between them is to be found explained in the author’s Man. Theol. mor.

Kinds,

1. In relation to their purpose or effect customs are either in accordance with law if they confirm or explain some law, or an addition to law if they extend it, or contrary to law if they destroy it.

2. In relation to their extent customs are either universal, general, particular, or individual according as they prevail either in the whole Church, or in some province, or in a city, or in a private community. This latter type of custom hardly deserves the name, as it is rather an indult or statute.

3. In relation to their form customs arc either judicial (jurisprudence, legal usage) or extrajudicial, according as they exist within or outside courts.

126. The conditions required for lawful custom are the following :

I. its content must be suitable ; 2. it must be introduced by a competent subject; 3. the legislator must consent to the custom.

1. A custom must have for its content a reasonable manner of acting that is public and fully deliberate and has existed for forty years uninterruptedly.

Consequently, whatever is contrary to Natural or divine law or to right reason cannot attain the force of law through custom. Moreover, a custom now in existence which is expressly forbidden by law is no longer reasonable (c. 27, § 2). Twenty-one such customs were withdrawn by the new Code.

2. The only subject capable of introducing a custom is a public community on whom law understood in its strict sense can be imposed.

Hence, for example, a diocese, a religious congregation, etc., have the power to introduce customs, but not private families. Furthermore, it is required that the custom be introduced, a) by the majority of the members of the community, b) by frequent and spontaneous acts, c) with the intention either of accepting or of rejecting some obligation. According to the more probable opinion it is not required in the beginning that the custom be introduced in good faith provided that all the other conditions are satisfied (cf. St. Alphonsus, Thcol. mor. I, 107).

3 . The consent of the legislator is absolutely necessary to give the customs of any community the force of law (cf. c. 25).

The consent may be explicit when the competent superior expressly approves the custom introduced, or legal ( juridical ) when the law itself allows the introduction of customs, or tacit when the superior remains silent even though he could easily object to the introduction of the custom. Each of these types of consent is sufficient.

127. The effects of lawful custom are three-fold according to St. Thomas : “ Custom has the force of law, abrogates law, and interprets law.” Nothing further remains to be said about custom as interpreting law ; what has been said in n. 103 sq. about the customary interpretation of law applies here.

1. Customs that impose an obligation or create a new law are today extremely rare, but in days previous this form of custom seems to have been responsible for introducing the clerical obligation of reciting the Divine Office privately and the matrimonial impediment of disparity of worship.

2. Customs that abrogate law, provided they satisfy all the necessary conditions, can revoke any human law, as is evident from the Decretals (c. 1 1, X. 1, 4). And thus many of the disciplinary decrees of the Council of Trent have been abrogated by custom.

128. Custom with the force of law ceases in the same way as law itself ; consequently we need only recall what has been said already in n. 123. But generally speaking— viz. when nothing is said expressly to the contrary— it must be remembered that a) a law cannot revoke customs which have existed for a hundred years or from time immemorial, b) a general law cannot destroy particular customs (c. 30).

Art. 9. Civil Law and its Obligations

129. I. The obligation of civil laws. “ There is no possibility of doubting that Christians are obliged to observe civil laws even though they are made by pagan rulers, provided that they are not opposed to Christian religion or to the moral teaching of the Gospel ; and the Apostle himself has left no room for doubt when without making any distinction between lawful superiors he says : ‘ Every soul must be submissive to its lawful superiors ; authority comes from God only. . . . From this most evident statement it is clear that those in the highest authority in civil government can make laws for their subjects which are binding in conscience. This is also suggested by the need of public safety, that is to say, of warding off from civil society the monster of anarchy which is worse than any dog or serpent ; and there are also the outstanding examples of the early Christians who obeyed the laws of their pagan rulers so long as they were able to do so without injury to their faith and good morals.” Thus writes the Sacred Congregation for the Propagation of the Faith in its Instruction to the Vicar Apostolic of Siam in answer to his query whether the civil law prohibiting traffic in opium was binding in conscience. Accordingly the opinion proposed that all modern civil laws are purely penal laws is utterly false. The following rules may be used to determine the nature of the obligation attached to such laws :

130. First Rule. Civil laws which determine rights or transfer ownership normally oblige in conscience on the basis of commutative justice. Such laws are just determinations of Natural law, and their non-observance would injure the welfare of society and prevent the citizens from living in peace with each other. Thus, for example, civil laws which grant the use and enjoyment of property belonging to minors, or which set aside a legitimate part of an inheritance for children oblige in conscience.

Second Rule. Civil laws which render acts invalid oblige in conscience after judicial sentence.

This is by far the more probable opinion. Consequently if a judge has declared invalid some will which was not drawn up in the proper form, it must be held invalid in the sphere of conscience also (cf. c. 1513).

Third Rule. When in doubt concerning the moral obligation of a civil law the citizens do not directly commit any sin by acting contrary to that law.

Fourth Rule. Unless there is an evident transgression of Natural, divine, or ecclesiastical law the citizens can always follow in conscience the precepts of the civil law. This is self-evident.

131. II. Civil law relating to taxes. A tax is any sum of money exacted from the citizens by civil law in order to meet the public expenses of the State.

Although duty is often understood as synonymous with tax, the word would be better reserved for that money which has to be paid for goods introduced into a kingdom or town.

Today there exists an almost unlimited number of taxes, but for the sake of convenience they can be reduced to two types : direct and indirect taxes. Direct taxes are those which must be paid at stated intervals by an individual designated by name, that is to say, those which are imposed immediately on the person because of his possessions or profession or business. Indirect taxes are those which are directly imposed on things, v.g., by reason of the exchange of rights through the contract of sale or by succession or by conveyance etc. Duty is a form of indirect taxation.

The payment of taxes is binding in conscience.

This is the teaching of all Catholic theologians and is clearly based on Scripture : “ Render therefore to Cesar the things that are Cesar’s and to God the things that are God’s.” This was the answer given by Christ to the question : “ Is it lawful to give tribute to Cesar or not ; ” “ Pay every man, then, his dues ; taxes, if it be taxes, customs, if it be customs” (Rom. xiii, 7).

But there is no obligation in conscience to pay taxes that are unjust. In order that they be just three conditions must be verified : 1. lawful authority, i.e., they must be imposed by those who have lawful care of the community ; 2. a just cause, i.e., provision for the common good ; 3. a due proportion in the imposition of taxes in accordance with the means of individual citizens.

Opinions regarding the Nature of the Obligation to pay Taxes.

132. First Opinion. All just taxes oblige in commutative justice.

St. Alphousus regards this opinion as the most common and the more probable, quoting 23 authors in support. The reasons given are, a) that the citizens by reason of an implicit contract are bound to meet the expenses which are necessary for the common good, and this they do by the payment of taxes, i) that just civil taxes oblige in exactly the same way as just ecclesiastical taxes, v.g., tithes. Now it is the most common opinion amongst theologians that the latter form of taxes oblige in commutative justice.

Second Opinion. All just taxes oblige in legal justice only.

This is the view held by many modem theologians who place the payment of taxes on the same footing as other civil laws which oblige in legal justice.

Third Opinion. All just taxes have the binding force of merely penal laws. This view is shared by a few modem theologians who propose as their reasons : a) the common opinion of the people regard tax laws as purely penal laws ; b ) modem legislators have no intention of imposing a moral obligation on the conscience of their people ; r) otherwise good citizens who pay their taxes would be worse off than others who use every means to evade taxes.

Fourth Opinion. Direct taxes oblige in conscience, indirect taxes are purely penal laws.

This is the view held by the majority of modern theologians following Ballerini who allege as the chief reason for their view the common opinion prevailing amongst the people.

133. Practical directions, i. Since hi modern states many of the taxes are unjust, the faithful who evade taxes on a small scale should not be disturbed ; however, in general, they should be urged to pay just taxes.

2. Those who evade indirect taxation should be treated more leniently in general than those who evade direct taxation, since to-day it is widely held that laws relating to indirect taxes are merely penal laws, at least so long as such evasion does not become a lucrative trade.

3. Official tax-collectors sin grievously and are bound to restitution if they knowingly lend their support to the evasion of taxes, since they commit a grave injury to the contract they have made of fulfilling their office faithfully.

4. Those who deliberately and in the form of a business evade indirect taxation usually commit grave sin, a) because they leave themselves open to the most serious dangers, and b) because they usually avail themselves of means which are most unlawful. It seems that they are bound to make restitution if by continued evasion they have caused serious damage to other traders.

134. III. Civil laws relating to military service are in themselves binding in conscience since this service is required for the defence of one’s country. It is simply one form of a personal tax. It may happen incidentally that this law ceases to oblige, a) if it is unjust, such as when exempt clerics are forced to fight with arms, b) if soldiers arc forced to fight in a war that is manifestly unjust. There is a sufficiently common opinion amongst modem theologians that the civil law regarding military service is binding in legal justice. But there are three cases when this law binds in commutative justice : 1. if anyone freely and by contract enlists in the fighting services ; 2. if a person by deceitful evasion of his service has been the cause of another designated citizen being compelled to fight ; 3 . if he offers money to doctors or other officials to bribe them into declaring him unfit for military service.