LAW
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LAW
fare. For laws are imposed upon the community as
such, in order to guide it to its goal; this goal, how-
ever, is the common welfare. Further, laws are to
reeulate the members of the commumty. This can
only come about by all striving to attain a common
goal. But this goal can be no other than the conunon
welfare. Consequently all laws must in some way
serve the common welfare. A law plainly useless or
a fortiori injurious to the community is no true law.
It could have in view only the benefit of private indi-
viduals and would consequently subordinate the com-
mon welfare to the welfare of mdividuals, the higher
to the lower.
Law therefore is distinguished from a command or precept by this essential application to the common welfare. Every law is a form of command but not every command is a law. Every binding rule which a superior or master eives to his subordinates is a com- mand; the command, however, is only a law when it is imposed upon the community for the attainment of the common welfare. In addition, the command can be given for an individual person or cose. But law is a permanent, authoritative standard for the commu- nity, and it remains in force until it is annulled or set aside. Another condition of law is that it should pro- ceed from the representative of the highest public au- thority, Ix; this a single person, several persons, or finally the totality of all the members of the commu- nity, as in a democracy. For law is, as already said, a binding rule which regulates the community for the attainment of the common welfare. This regulation pertains either to the whole community itself or to those persons in the highest position upon whom de- volves the guidance of the whole community. No order or unity would be possible if private individ- uals had the Iil>erty to impose binding rules on others in regard to the common welfare. This right must be reserved to the supreme head of the community. The fact that law is an emanation of the liighest authority, or is issued by the presiding officer of the community by virtue of his authority, is what distinguishes it from mere counsels, requests, or admonitions, which presup- pose no power of jurisdiction and can, moreover, oe addressed by private persons to others and even to superiors. Laws, finally, must be promulgated, i. e. mode known to all. Law in the strict sense is im- posed upon rational, free beings as a controlling j^ide for their actions: but it can be such only when it has been proclaimecl to those subject to it. From this arises the general axiom: Lex non promulaata non ohli- QcU—^ law which has not been promulgated is not uinding;. But it is not absolutely necessary to pro^ xnulgation that the law be made known to every indi- vidual; it suffices if the law be proclaimed to the com- munity as such, so that it can come to the notice of all members of the community. Besides, all laws do not require the same kind of promulgation. At pres- ent, laws are considered sufficiently promulgated when they are published in official journals (S&te or im- perial gazettes, law records, etc.).
In addition to the moral law as treated above, it is customary to speak of moral laws in a wider sense. Thus it is said it is a moral law that no one is willingly deceived, that no one lies without a reason, that every one strives to learn the truth. But it is only in an un- real and figurative sense that these laws are called moral. They are in reality only the natural laws of the human will. For although the will is free, it re- mains subject to certain inborn tendencies and laws, within which bounds alone it acts freely, and these laws are called moral only because they bear on the activities of a free will. Therefore they are not ex- pressed by an imperative "must". They merely state that by reason of inborn tendencies, men are ac- customed to act in a ffiven way, and that such laws are observed even by those who have no knowledge of them.
To understand still better the significance of moral
law in the strict sense, henceforth the sole sense
intended in this article, two conditions of such law
should be considered. It exists first in the intellect
and will of the lawgiver. Before the lawgiver issues
the law he must apprehend it in his mind as a practi-
cal principle, and at the same time perceive that it is a
reasonable standard of action for his subjects and one
advantageous to the common welfare. He must then
have the will to make the observance of this principle
obligatory on those imder him. Finally, he must
make known or intimate to those under him this prin-
ciple or authoritative standard as the expression of
his will. Strictly construed, legislation in the active
sense consists in this last act, the command of the superior to the inferiors. This command is an act of the
reason, but it necessarily presupposes the aforesaid
act of the will and receives from the latter its entire
obligatory force. The law, however, does not attain
this obligatory force until the moment it is made
known or proclaimed to the community. And this
brings us to the point that law can be considered ob-
jectively, as it exists apart from the lawgiver. At this
stage law exists either in the mind of the subjects or in
any permanent token which preserves the memoiy of
it, e. g. OS found in a collection of laws. Such out-
ward tokens, however, are not absolutely necessary to
law. God has written the natural moral law, at least
in its most general outlines, in the hearts of all men,
and it is otjiigatory without any external token.
Further, an external, permanent token is not abso-
lutely necessary for human laws. It suffices if the
law be made known to the subjects, and such knowl-
edge can be attained by oral tradition.
II. Obligation Lmposed by Law.— Law (in the strict sense) and command are pre-eminently distinguishexl from other authoritative standards of action, inasmuch as they imply obligation. Law is a bond imposed upon the subjects by which their will is bound or in some way brought under compulsion in regard to the performance or the. omission of definite actions. Aristotle, therefore, said long ago that law has a com- pelling force. And St. Paul (Rom., xiii, 1 sqq.) teaches that we are bound to obey the ordinances of the authorities not only through fear but also for con- science' sake. In what then does this obligation which law imposes upon us consist? Modern ethical systems which seek to construct a moraUty indepen- dent of God and religion, are here confronted by an in^ explicable riddle. The utmost paina have been taken to construct a true obligation without regard to God. According to Kant our reason itself is the final source of obligation, it obliges us of itself, it is nomothetic and autonomous, and the absolute form in which it commands us is the categorical imperative. We are obliged to fulfil the law omy on account of itself or because it is the law of our reason; to do something because another has commanded us is not moral, even should this other be God. This view is entirely un- tenable. We do not owe obedience to the laws of Church and State because we bind ourselves thereto, but because their superior authority obliges us. The child owes obedience to its parents not because it en- gages so to do but because the authority of the par- ents obliges it. Whoever asserts that man can bind only himself, strikes at the root of all authority and asserts the principle of anarchism. Authority is the ri^ht to issue to others binding, obligatory regulations. Whoever maintains that none can put more than himself under obligation denies, thereby, all authority. What is said of human authority is equally valid of the Divine authority. We owe adoration, obedience, and love to God, not because we engage so to do, but because God obliges us by His commands. The as- sertion that to do something because God has com- manded us is heteronomy (subjection to the law of another) and therefore not moral, implies in principlt
