A manual of moral theology for English-speaking countries/Book 3

by Thomas Slater

BOOK III

ON LAW

CHAPTER I

THE NATURE OF LAW

I. 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. i), 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).

2. 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.

3. Laws are divine or human. Divine law is either natural or positive. The natural law is promulgated in the rational nature of man, and is a participation in human reason of the eternal law of God, which bids us observe right order, and forbids its disturbance. Positive divine law is made known by revelation.

Human law is ecclesiastical when made by the authority of the Church; municipal or civil when it is the ordinance of the civil ruler. The term civil is frequently restricted to the Roman civil law.

Other divisions of law and their application will be clear from the chapters which follow.

CHAPTER II

ON THE POWER OF MAKING LAWS

I. No body of men could live together in peace without being subject to a supreme authority whose function it is to look after the common weal by defending the rights of all, repressing and punishing crime, and taking measures in the common interest which are beyond the power of private enterprise. God, from whom all power is derived, has willed that there should be a separate supreme spiritual authority to look after the spiritual welfare of mankind, and another to look after its temporal welfare. As Leo XIII teaches, in his Constitution Immortale Dei, November i, 1885: " The Almighty, therefore, has appointed the charge of the human race between two powers, the ecclesiastical and the civil, the one being set over divine, and the other over human things. Each in its kind is supreme, each has fixed limits within which it is contained, limits which are defined by the nature and special object of the province of each, so that there is, we may say, an orbit traced out within which the action of each is brought into play by its own native right. . . . One of the two has for its proximate and chief object the well-being of this mortal life; the other the everlasting joys of heaven. Whatever, therefore, in things human is of a sacred character, whatever belongs either of its own nature or by reason of the end to which it is referred, to the salvation of souls, or to the worship of God, is subject to the power and judgement of the Church. Whatever is to be ranged under the civil and political order is rightly subject to the civil authority. Jesus Christ has himself given command that what is Caesar's is to be rendered to Caesar, and that whatever belongs to God is to be rendered to God."

The spiritual and the civil power use their authority to make laws, and in this chapter we propose briefly to indicate those who have legislative authority in the Catholic Church.

2. The power of making laws resides in the supreme authority in the Church, and in any person or body of men to whom the power has been communicated.

(a) The Pope, by the primacy of jurisdiction which he receives from God, is the supreme lawgiver in the Church. He exercises this function either alone or in a general council. Sometimes he acts in his own name, sometimes he uses one of the Roman Congregations for his purpose. The Congregation of Sacred Rites (S.R.C.) has received from the Pope authority to make laws for the whole Church in liturgical matters which have been entrusted to its supervision. ^[3]

The general decrees, then, of the S.R.C. bind the whole Latin Church by their own authority. The same must be said of special decrees which are comprehensive i.e., which merely interpret the meaning and application of a pre-existing law. Decrees made in answer to special questions, if they are not promulgated authentically, and especially if they are extensive i.e., if they contain a new provision of law bind the parties concerned, but probably impose no obligation on others.

(b) The Bishops, assembled in national or provincial councils, or separately in their respective dioceses, make laws for their own subjects. ^[4] A Bishop's legislative authority is usually exercised in his diocesan synod; other ordinances are looked upon rather as precepts than laws, unless the Bishop, after consulting his chapter, specially expresses his mind to the contrary. By modern ecclesiastical law, an Archbishop has no legislative authority over his suffragans or their dioceses. He can hear appeals from their subjects, and in special cases he supplies for their neglect of duty (Can. 274).

Bishops, inasmuch as they are subject to the common law of the Church and the decrees of the Holy See, can make no law which is contrary to these.

(c) Religious Orders have power to make laws for their own members. The power is exercised according to the special Constitutions and Rules approved by the Holy See for each Order. Orders of women, however, have no legislative authority, though the superioresses, by virtue of what is called dominative power, can of course give binding precepts to their subjects.

(d) Parish priests, since they have no jurisdiction in the external forum, are incapable of making laws.

It belongs to canon law to treat more fully this and similar matters connected with laws; nor is it any part of the duty of a moral theologian to inquire what is the legislative authority in civil matters.

CHAPTER III

THE MATTER OF LAW

I. IT is the duty of the legislative authority to promote the common good by wise, just, and useful laws. It should apportion burdens according to the principles of distributive justice, so that they may not press unduly on the shoulders of particular classes and persons. Over-legislation should be avoided; something must be left to private initiative; individuals and families should be allowed as much freedom as is compatible with the public welfare. Even prohibitive legislation will be kept within the bounds of moderation in a well-ordered State; not all evils will be forbidden, but some even of the more serious breaches of the moral code will be tolerated by the State, lest by trying to force people to be good greater harm may ensue. What is conducive to the common weal will be the legislator's guide in the framing of laws. ^[5]

2. Human laws cannot be contrary to the divine law, from which they derive all their force and efficacy, so that a law which prescribes something morally wrong is no law at all, and cannot exert any binding force on the conscience. There is nothing to prevent human law prescribing or forbidding what is already of obligation or forbidden by the divine law. A parent is bound by natural, divine, and human law to bring up his children properly; theft is forbidden by human and divine law.

3. An obligation which is left indeterminate by the divine or natural law may be further determined by human law as to time, place, frequency, and other circumstances affecting the observance of it. And so the civil law determines at what age children attain their majority, and which near relatives are responsible for the support of the indigent poor; the Church, too, determines the limits of the impediment of consanguinity as affecting marriage, the times for the reception of the sacraments of Penance and Holy Communion, and many other obligations left indefinite by divine or natural law.

4. An act which in itself is indifferent may in certain circumstances become opposed to the public welfare, or on the contrary may conduce to it. The legislative authority may, for the public good and to further the end for which the society exists, prescribe or prohibit such acts according to circumstances. In itself it is indifferent on which side of the road a carriage is driven, and whether it passes another on the right or on the left; but where traffic is considerable it is necessary that these matters should be regulated by law or custom. To eat meat on Friday is in itself as lawful as to eat it on any other day, but the Church has forbidden it in order that her children may exercise themselves in the practice of temperance and mortification of the sensual appetite. When an indifferent act or one which already belongs to some special virtue is commanded by the legislator from a motive which belongs to some other virtue, the act commanded henceforth belongs to the virtue which furnished the motive, if the legislator so wills. And so, inasmuch as the j Church prescribes fasting Communion out of reverence for the Blessed Sacrament, one who receives not fasting is guilty of irreverence and sacrilege, though, apart from the Church's law, to receive Holy Communion not fasting would not be sinful. For just as an action may get a special moral quality from the end for which the agent performs it, so the motive of the legislator may give a distinct moral quality to an act which he commands. The same holds good of prohibitive laws.

5. Acts of heroic virtue which would be impossible for the body of the people cannot ordinarily be prescribed by law. A law must be morally possible of observance for the general body of the subjects. When, however, the public good requires acts of heroism, and especially when a state of life has been voluntarily assumed which demands heroism, acts of heroic virtue may then become matter of law. The soldier must obey orders at the risk of life, and the Church is justified in prescribing celibacy to all who freely choose to enter sacred orders. If anyone feels that he cannot observe the law, let him not volunteer for the service.

6. Merely internal acts which do not conduce to the common good of civil society, cannot be the subject-matter of civil law. The Church's end is the spiritual welfare of her children, to which internal acts contribute much; and so, many theologians hold that the Church may prescribe merely internal acts. She certainly has the power of prescribing internal actions concomitantly, as it is said, when they form part of a whole human action. Therefore, in commanding her children to hear Mass on Sundays, she bids them have the necessary intention, without which a human act is impossible. The Church also has authority over internal acts when she determines the divine law about articles of faith, declaring that such a truth is to be believed, or that acts of faith, repentance, or charity are to be elicited at certain times. Moreover, in the internal forum of Penance the priest can impose internal acts of virtue as satisfaction for sins confessed. Religious, too, who have voluntarily by vow subjected themselves to their superiors, are bound to obey the rules and constitutions which prescribe times for meditation and prayer. All theologians are agreed on these points. But apart from these special cases, it is the more common teaching of theologians and canonists that the Church has no power to make laws about merely internal acts. For such acts are not cognizable in the external forum of the Church, and, since the legislative power is coextensive with the judicial, it would seem that she cannot make laws about them.^[6]

CHAPTER IV

THE SUBJECTS OF LAW

i. ALL those are subject to the law and bound to yield it obedience who live under the authority of the legislator. And so, inasmuch as the natural law is derived from the eternal law of God, and is nothing else than the rule of action suited to human nature as such, all who participate in human nature are subject to the law of nature. Infants and madmen who do something forbidden by the law of nature are indeed excused from formal sin for want pf knowledge, but anyone who wilfully provokes them to such actions commits sin by their means in so doing.

2. Human law is intended to be a guide for reasonable human beings, and so the habitual use of reason is required in order to be subject to human law. Imbeciles and children who have not yet attained the use of reason are not subject to positive law. Regularly the Church presumes that at seven years of age children attain the use of reason, and inasmuch as the law provides for what ordinarily happens we may say that at seven years children begin to be obliged to hear Mass and to fulfil the other duties of the Christian life (Can. 12). It is well that they should be accustomed to obey such laws as those of hearing Mass and abstaining even earlier. There are special reasons for deferring the obligation of fasting, and sometimes for deferring for a time that of receiving Holy Communion (Can. 859).

Drunken people remain subject to the Church's law, for habitually they have the use of reason.

3. Men become subject to the Church by Christian baptism, and so all baptized persons, and these alone, are subject to the laws of the Church. Heretics and schismatics who are validly baptized are per se subject to the Church's laws, but a probable opinion teaches that it is not the Church's intention to bind them by such of her laws as proximately regard the sanctification of individual souls rather than the public good. Such are the laws of keeping certain days holy, of abstaining, of fasting, of hearing Mass on Sundays. Harm rather than good would follow from intending these laws to bind heretics and schismatics.

4. Particular ecclesiastical laws are made for particular countries, or provinces, or dioceses, by the competent authority, and bind all subjects living within the territories in question. One is subject to local law by having a domicile or quasi- domicile in the territory for which the law is made. To constitute a domicile in ecclesiastical law, two conditions are required. The person domiciled must have taken up his abode in a parish, or quasi-parish, or at least in a diocese, vicariate apostolic, or prefecture apostolic; and this abode must be joined either with the intention of perpetually remaining there, if they are not called away, or with the actual dwelling there for ten years.

A quasi- domicile is acquired by taking up his abode in the place as above, joined with the intention of remaining there for the greater part of a year if not called away, or with the actual dwelling there for the greater part of a year.

A domicile and a quasi- domicile are lost by those who have them leaving their abode with the intention of not returning there; but wives always retain the domicile of their husbands unless they are lawfully separated from them, and minors that of their guardians (Can. 13, 92, 93, 95).

Whoever, then, resides in a place, having therein a domicile or quasi- domicile is subject to the particular laws of that place. Contracts, too, are governed by the law of the place where they are made, and whoever commits a crime is amenable to the law of the country where it is committed.

While outside the limits of the territory in which one is domiciled, there is no obligation to obey the particular laws of that territory, for the law is territorial and does not bind beyond the limits of the territory for which it was made.

A stranger (peregrinus), or one who has a domicile in another place, but at present is staying elsewhere, is not bound by the particular laws of the place where he is staying; for he is not subject to their authority by having either a domicile or a quasidomicile in the place. And so, if an English Catholic happened to be in Dublin on the feast of St Patrick, which is kept there as a day of obligation, he would not be bound to hear Mass; nor would a Dublin man who happened to be staying on that day in England. However, a stranger staying in a place where the common law of the Church is observed is bound to act according to its provisions, though there may be a dispensation from its observance in the place where he has his domicile. And so an English Catholic staying in Rome should abstain from flesh meat on Saturday as well as on Friday in Ember week. Moreover, any contracts that he may enter into or crimes that he may commit subject him to the laws of the country where he is staying in those respects (Can. 14).

Homeless people (vagi) are bound by the general and particular laws which are in force in the place where they are staying (Can. 14, sec. 2).

Regulars and their monasteries are exempt from episcopal authority, and so in general are not subject to the laws made by the Bishops for their dioceses. There are, however, many exceptions to this general rule, for in spite of their exemption regulars have in special cases been subjected by the Holy See to the ordinary or else delegated authority of diocesan Bishops. The special cases are treated of by canonists (Can. 615).

CHAPTER V

ON THE ACCEPTANCE OF A LAW

i. LEGISLATIVE authority in the Church is derived from God and not from the people, so that an ecclesiastical law receives its binding force not from the will of the people but from the will of the legislator, made known by the promulgation of a law. An ecclesiastical law, then, binds those for whom it is made, independently of the acceptance of the law by the people (Can. 218).

2. Practically, however, if a law is not accepted or acted on by the people, it may in various circumstances be said no longer to be of obligation. If the law was never put in force, and acts contrary to it were known to and connived at by authority, the law may be said not to bind for want of acceptance. Really it does not bind because the ruler does not urge it, but tacitly consents to its non-observance. Similarly, if the greater and saner portion of a community do not observe a law, it may be presumed that it is not the legislator's will to bind the rest. It is obvious that there is question here only of disciplinary laws, for if the law decides matters of faith, obedience is at once imperative.

3. It is the duty of Bishops to make known to their people and to execute new laws made by the Holy See, especially if the new laws were sent to them for the purpose, or if it is thought likely that they will be useful to the diocese.

If, however, a Bishop thinks that a new pontifical law is not suited to his diocese, he not only may, but it is his duty to represent the matter to the Holy See, and in the meantime the obligation of the law is suspended. If the Holy See, after weighing the matter, insists on the observance of the law, obedience must be rendered to lawful authority.^[7]

CHAPTER VI

ON THE OBLIGATION OF LAW

I. BY obligation we here understand a moral necessity arising from a law to do or to forbear doing something. It is said to be a moral necessity, not physical, because it does not subject the person bound to physical but moral constraint to act according to the law; he must act thus if he would do his duty, if he would act reasonably, if he would escape guilt, sin, and punishment.

In a slightly restricted sense a moral obligation is said to be imposed on those subject to a law which binds in conscience under pain of committing sin. Such a law is called a moral law. If the intention of the legislator is not to bind the conscience under pain of sin, but only under pain of paying the penalty imposed, the law is called a penal law. If the law binds under pain of sin, and also imposes a penalty on transgressors, it is called a mixed law.

2. The obligation of a law depends primarily on the will of the legislator. For we are here considering not the natural law, which is imposed by the very nature of things and by God, but positive law, which depends on the will of the legislative authority for its existence, and so also for the kind and quantity of obligation which it imposes. The legislator may intend to impose a moral obligation under pain of sin, for God commands us to obey our lawful superiors when they impose a strict precept on us, and disobedience to them is an offence against him an4 a sin. If the matter is of sufficient importance, he may intend the obligation to be serious, so that a breach of it would be grievously sinful, or he may intend it to be only slight, whose breach would be a venial sin. It would be unreasonable to intend to bind under pain of grave sin in a light and trivial matter, and so a human legislator cannot do this. The legislator may also, if he choose, intend to bind only under pain of paying the penalty, and then the subject in case of violation of the law will only be bound in conscience to do this. The kind of obligation, then, which a law imposes depends principally on the will of the legislator, but secondarily also on the matter of the precept.

3. The kind and quantity of obligation imposed by any particular law may be gathered from the express mind of the lawgiver. If the matter be capable of a grave obligation, and in making the law words indicating a strict precept are used e.g., we command, we severely ordain the presumption is that the law imposes a grave moral obligation. The same may be said if a grave censure or other grave penalty is imposed on transgressors. The interpretation of Doctors, and the way in which custom interprets a law, are also guides to its binding force.

4. An affirmative law, which commands something to be done, is said to bind always but not for always. Thus we are commanded to pray always i.e., never to abandon prayer though we are not obliged continually to pray all day long, but only at suitable times. A negative precept, on the other hand, binds always and for always, so that we must continually act according to its prescriptions. At no time on days of obligation may we do servile work.

5. A law imposes in the first place an obligation on those subject to it to inform themselves of its existence and provisions, for it imposes the duty of observing it, and this cannot be done unless the terms are known; knowledge of the law is the necessary means to the end. A law also forbids us to put ourselves in the proximate occasion of transgressing it, for the avoidance of such proximate occasions is also a necessary means for the observance of the law.

6. A negative law is observed by abstaining from what is forbidden, for that is the intention of the lawgiver. Provided that we abstain from servile work on a Sunday, we fulfil that part of the law; no special intention of riot working or of fulfilling our obligation is required. An affirmative law which prescribes something to be done sometimes requires a conscious human act for its fulfilment; sometimes it does not. If the obligation be merely real, as the duty of paying a debt, even unconscious payment will suffice, provided that the creditor gets what belongs to him. If a personal obligation is imposed of performing some action e.g., hearing Mass the action must be performed in a human manner, by a conscious, voluntary act. It is not, however, necessary to intend to fulfil the purpose of the law; we satisfy the precept of hearing Mass by intending to hear it and actually doing so; to fulfil the obligation it is not necessary to intend to honour God, nor even to be in a state of grace; the end of the precept does not fall under the precept, as the adage has it.

7. We may sometimes satisfy two obligations by one and the same action, as when a day of abstinence, on account of a vigil, falls on a Friday, or a day of obligation falls on a Sunday. Sometimes, however, the nature of the obligation or the presumed will of the legislator prohibits this being done. If a confessor imposed the hearing of Mass for sacramental penance, it would ordinarily be intended that a Mass not otherwise of precept should be heard. Nothing hinders the simultaneous fulfilment of two different obligations by actions which do not clash. A priest may well say his breviary while hearing a Mass of ob'igation.

8. If the whole of an obligation cannot be fulfilled, we are not thereby excused from fulfilling a part, if the matter is capable of being divided, and thus in some degree the end of the law is secured. If a priest, for example, cannot say the whole breviary, he must say what he can, if the portion which he can say be considerable and the form prescribed by the Church be observed. However, if a Bishop could not go the whole way to Rome to make his visit ad limina, there would be no obligation of going as far as he could.

9. When a fixed time is appointed for the fulfilment of an obligation, sometimes, according to the will of the legislator, after the term has passed, the law no longer binds; sometimes, on the other hand, the obligation must still be fulfilled. Thus, if a priest lawfully or unlawfully has omitted his breviary, he is not bound to make it up on the following day, or if one of the faithful miss Mass on a Sunday, he is not bound to supply the omission by hearing it on a week day. On the other hand, if a debt has not been paid on the date agreed on, it must be paid as soon as -possible afterward, and if the Easter Communion has not been made at the proper time there still remains the duty of making it.

CHAPTER VII

ON THE INTERPRETATION OF LAW

I. THE interpretation of law is its genuine explanation according to the mind of the lawgiver.

(a) This interpretation may be authentic, doctrinal, or customary.

Laws are authentically interpreted by the lawgiver, his successor, and by him to whom this power of interpreting the law has been granted by them.

An authentic interpretation set forth by way of law has the same force as the law itself; and if it only declares the words of the law which in themselves are certain, it does not need to be promulgated and it has a retrospective force; if it restricts or extends the law or if it explains a doubtful law, it has not a retrospective force and it should be promulgated. But if it is given by way of judicial sentence or rescript in a particular matter, it has not the force of law, and it only binds the persons and affects the matters for which it was given (Can. 17).

Doctrinal interpretation is that which doctors and lawyers make according to the recognized rules of legal interpretation. It has weight according to the knowledge, skill, experience, and standing of him who makes the interpretation.

Customary interpretation is that which a law receives from the practice and conduct of those who are subject to it. It has very great authority, for it is presumed to have at least the tacit approval of the lawgiver, and indeed, according to the adage, " Custom is the best interpreter of law " (Can. 29).

(b) A strict interpretation takes the words of the law in their literal meaning; a wide interpretation takes the words in a looser sense.

2. Many rules are given by canonists for the doctrinal interpretation of law. The following are the most important for our purpose in moral theology:

(a) The words of the law must be taken in their obvious and natural meaning. The lawgiver must be supposed to have wished to express himself as clearly as possible, and to have said what he meant. Sometimes, however, legal terms have a technical meaning which must be attended to. Thus, legitimate in ecclesiastical law is used of children who have been legitimatized as well as of those who were born in lawful wedlock.

(b) The mind of the legislator and the scope of the law must be attended to. This rule does not imply that we must try to get at the private intention and object which the lawgiver had in view in making the law. It means that we must consider the circumstances which gave rise to the law, the object which it was designed to attain as expressed in the law itself, especially in the narrative or historical portion of it. The whole law should be pondered, not merely an isolated section; and if there is question of interpreting an answer or rescript sent in reply to a question or petition, this latter must be carefully considered.

(c) Laws which impose some new burden or restriction receive a strict interpretation, those which confer a favour a wide interpretation. For the lawgiver is presumed to be benignant towards his subjects, and to have expressed himself with precision and strictness in the disagreeable task of laying burdens on his people. In such a law, then, the word clerk will only comprehend the lower ranks of the clergy, whereas it will comprehend dignitaries and religious in favourable matters.

(d) A law must not be extended from one case to another even if the same reason exist in the two cases, for the reason of the law is not the law. And so although parish priests are bound to offer Mass on holy days of obligation for their parishioners, this obligation must not be extended to a parish priest's assistants, for such priests, though they have the care of souls, are not parish priests (Can. 475). If, however, anything unjust, inequitable, or absurd would follow from the application of this rule, then it must not be applied. And so, generally, where the law punishes the adultery of the husband, it must be applied to an adulterous wife; where power is granted to make a will, legacies may be left too. The less is contained in the greater (cf. Can. 18 ff.).

3. Epteikeia, or equity, is a benign and equitable interpretation of the law, by which it is not deemed to apply to some particular case. For cases arise where, if the law were applied, hardship and harm would be the result. The law is made for ordinary conditions and is intended to apply in ordinary circumstances; the lawgiver could not foresee all possible cases, and he is not presumed to intend the law to press unduly on individuals, so as to cause special hardship. So that when the observance of the law in any particular case would cause special hardship which the lawgiver cannot be presumed to have intended, the person so situated is excused from obeying the law by an equitable interpretation of it. If, for example, I should incur serious risk of contracting some disease if I went out to hear Mass on a Sunday, I am excused from obeying the precept.

Such equitable interpretations are specially permitted in affirmative laws, not in those which make an act done contrary to them null and void. The common good requires that these should be observed even with grave personal inconvenience. And so the diriment impediments of marriage do not cease to bind even when they cause serious inconvenience in particular cases.

CHAPTER VIII

WHAT EXCUSES FROM OBSERVING THE LAW

i . THE natural law continues to have binding force even though its observance entails great inconvenience. We must not commit murder to save the State, nor are we allowed to tell a lie in order to preserve human life. ^[8] Positive law, however, does not bind with the same rigour. Our Lord taught us ^[9] that even the positive divine law does not bind men when great inconvenience would follow from its observance. It is an axiom that necessity has no law. This is all the more true of positive human law, which must be accommodated to the moral strength of the majority of the people, otherwise it will be impossible to observe it, and nobody can be bound to do what is impossible. So that not only physical impossibility excuses from the observance of the law, but also any relatively great difficulty or serious inconvenience which constitutes moral impossibility (Can. 2205).

No general rule can be given for estimating the degree of difficulty which would excuse from the duty of observing any particular law in the concrete. The importance of the law, the intention of the legislator, the results of non-observance of the law, the degree of difficulty in the special case, must all be considered, and a prudent judgement given in view of all the circumstances.

2. A law binds those to its observance who are subject to it, but it does not oblige people to remain subject to it. If I do not like living under a particular law, the law does not prevent me from going elsewhere into territory where it does not bind, and thus freeing myself from the duty of observing it. If I do not like abstaining from flesh meat on days of abstinence, I may lawfully go and live in Spain, get my Bulla Cructata, and enjoy my flesh meat. Such an action will be perfectly lawful, even if I directly intend to withdraw myself from the authority of the law. I have the right to use my liberty to go and live where I choose as far as the law is concerned. And when I am outside the particular territory subject to the law, it no longer binds me.

3. As long as a person remains subject to a law he must have the will to fulfil its obligations as far as he can, so that he must not do anything with the intention of making it impossible for him to observe the law. Moreover, he must take reasonable means to be able to do what the law commands, for one who is bound to secure some end is bound to use the necessary means. And so a priest who is going to travel must take his breviary with him so as to be able to say his Office; and time must be made by all Catholics for hearing Mass, receiving the sacraments, and fulfilling other religious duties. The question as to what obstacles to the observance of a law I am bound to remove as far as I can, or whether and when I commit a sin by doing something which will make the observance of the law impossible, is one of great practical difficulty. We have already seen that it is not lawful to put obstacles in the way of observing a law with the intention of escaping the obligation. But suppose there is no such intention, does the precept of hearing Mass, e.g., forbid me to go to a seaside place where there is no Catholic church, and where I foresee that I shall not be able to satisfy the precept?

This is a type of many practical questions which occur and for which it is difficult to find a general answer. The law in question, the intention of the lawgiver, the practice of good men, and other circumstances, must be weighed in each case. The answer given by theologians to the special question proposed may be taken as a guide toward a solution in other similar cases. They say that such a precept does not oblige us to foresee and make arrangements for its observance a long time ahead; such an obligation would be a great inconvenience and seriously interfere with our liberty. So that any time within the week I may go where I like without regard to the necessity of hearing Mass on the following Sunday. However, when Sunday is practically at hand, say on Saturday evening, the precept of hearing Mass begins to be urgent, and forbids me to do anything without necessity which would make it impossible for me to fulfil the precept.

In this question, as in others, we are considering what is of strict obligation under pain of sin; a good Catholic would of course try as far as possible to have the opportunity of fulfilling his religious duties on a Sunday.

CHAPTER IX

ON THE CESSATION OF LAW

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

SECTION I

On Custom

1. A custom in the technical sense must be distinguished from a mere use. A use is a constant manner of acting but without binding force. Thus we take holy water on entering the church, and receive blessed ashes on Ash Wednesday, and palms on Palm Sunday, but there is no obligation of doing so, and no sin is committed if we neglect these pious practices; they are only uses. A custom has the force of law from which it only differs in its origin. It arises from the repeated acts of the community which it binds. However, inasmuch as in ecclesiastical matters at least, the community as such has no legislative authority, the binding force of ecclesiastical customs is derived from the express, tacit, or legal consent of the legislative authority. Legal consent to all customs which have the requisite qualities is given in the last chapter of the Title on Custom in the Decretals, and Can. 27.

2. A custom is said to be according to the law if it confirms and interprets the law by long- continued usage.

It is beside the law if it introduces a new law in a matter for which no written law exists.

It is contrary to the law when the acts by which the custom was introduced were forbidden by law. There is nothing repugnant in the notion of a lawful custom being introduced by wrongful acts, for when the custom is formed the acts cease to be forbidden, because the contrary law has in fact ceased to exist.

3. In order that a custom may have the force of law it must be reasonable and it must fulfil certain other conditions.

A custom will be reasonable if it is not against the natural or divine law, against which no custom can prevail, nor furnishes the occasion nor is an incentive to sin, nor is pernicious and hurtful to the common good. Inasmuch as custom has the force of law, it cannot be introduced by individuals or by private families, for whom precepts may be given but laws cannot be made.

It must be introduced by the repeated acts of the greater portion of a community or corporate body which is capable of being the subject of law. How many acts are required to form a custom depends much on the matter, and must be left to the prudent judgement of experts.

The acts by which the custom is introduced must be voluntary, not the product of ignorance or mistake, and unless the tacit consent of the legislator is given before, they must continue for a long time that is, forty years (Can. 27).

4. As custom depends on the will of the ecclesiastical superior, he may refuse to admit or he may abrogate a custom.

The clause " Notwithstanding any custom to the contrary," which frequently occurs in pontifical legislation, merely annuls general customs to the contrary, not special ones nor immemorial customs, nor those of a hundred years' duration. These require special mention in papal but not in episcopal legislation. The reason of the difference lies in the fact that the Pope may easily be unaware of local customs, and he does not annul what he does not know. But a Bishop is presumed to know the customs of his diocese, and if he makes a law which is against a custom he thereby abrogates the latter.

Only a reasonable custom which is immemorial or of a hundred years' duration can prevail against a law which contains a clause forbidding future customs to the contrary (Can. 27). If, however, a law reprobate contrary customs as abuses, they cannot be introduced as long as the circumstances remain the same. Such customs would be unreasonable, and could not have the consent of the legislator.

SECTION II

A Law Become Useless

1. A law should further the common good; if it ceases to do this, it becomes useless, and ceases to be a law. A law then ceases to bind when it ceases to be useful for the object for which it was made. However, it not unfrequently happens that a law was designed to further several objects, and it may well be that, though it is useless for one purpose, it is of use for another. The law which requires banns to be published before marriage is designed to discover impediments if there be any, and also to secure the publicity of marriage. It may be absolutely certain that there are no impediments, but for all that the other object of the law, remains to be secured, and prevents the law from being useless. The law remains in force as long as it serves its purpose to some extent, though it may not attain all the objects for which it was made.

2. A positive law ceases to be of obligation in a particular case if it becomes hurtful, or if it cannot be observed without serious inconvenience. But does a law cease to bind in a particular case when it becomes merely useless, when it fails in that particular case to attain any of the objects for which it was made? This question is disputed among theologians. The better and more common opinion is that the law does not then cease to bind. For the law is made for the community, and if it continues to promote the common good it retains its binding force for the community. Nor can individuals shake off the obligation of such a law on the ground that it is useless for them; they are bound to conform their actions to the rules which govern the community of which they are members. Besides, there is always danger of selfdeception in such matters, and it would be a dangerous principle to admit that one who thinks that a law is useless as a guide for his own conduct need not obey the law. If, however, there be no danger of self-deception, and if it is quite certain that a law has ceased to be of any use in some special case, several theologians of weight admit the probability of the contrary opinion. ^[10]

Canon 21 enacts that laws made to guard against a general danger continue to bind even though the danger may not exist in a particular case.

SECTION III

On Dispensations

I. A dispensation is a relaxation of the law in a particular case for some special reason. The law still remains in force, but ,by a dispensation one who would otherwise be bound to conform to it is withdrawn from the operation of the law. When a law forbids something to be done without leave, as when a religious is forbidden to go out without the leave of his superior, the going out with leave is not against the law, but is in keeping with it. On the other hand, when one eats meat on a Friday, with a dispensation, the act is against the law, but the obligation of the law has been removed from the person dispensed. As jurisdiction is required to make a law, so ordinary or delegated jurisdiction is necessary for granting a dispensation. Ordinary jurisdiction is that which by law is annexed to an office; delegated jurisdiction is exercised by the commission of one who has ordinary jurisdiction (Can. 197).

A good cause is always required in order that a dispensation may be lawfully asked for and granted. All should conform to the laws made for the common good, and the superior who without just cause exempts anyone from the duty of obeying a law is unfaithful to his office, and commits the sin of acceptance of persons. If such a superior uses only delegated authority to dispense, he acts not only unlawfully, but invalidly, because he received his authority to grant dispensations only for a good cause. He therefore exceeds the limits of his authority by attempting to dispense without good reason. Similarly, one who asks for a dispensation without good cause does wrong.

A good cause for granting a dispensation must not be altogether trivial, nor is it so grave that of itself it exempts from the obligation of obeying the law. Beyond saying this, it is difficult to be more precise. Much depends on the particular law in question, and on the circumstances of the case.

2. A legislator can dispense in his own laws, in those of his predecessors, and in those of his subordinates by his ordinary jurisdiction; he cannot dispense in the laws of his superior unless he has received delegated authority for the purpose.

(a) The Pope, then, can dispense in all ecclesiastical laws, even in those which have been made in a general council. He cannot dispense in the natural or divine law; but in vows, oaths, and in marriage which has not been consummated, the Pope can for good cause dispense in the name of God, or at least declare that in certain circumstances they have ceased to exist; for whether he then in the strict sense dispenses, or only declares the sense of the divine law, is a disputed point. In practice there is little difference between the two views.

(b) Bishops can dispense in episcopal laws, and even in those of a provincial or plenary council, unless such authority has been reserved. Although they have no authority over the common law of the Church per se, yet by custom and the presumed consent of the Pope, Bishops can in particular cases dispense from the common law in trivial and doubtful matters, in matters which are of frequent occurrence, as in abstinence, fasting, observance of days of obligation, in the divine Office, and even in other matters of greater moment which admit of no delay. ^[11]

Bishops can dispense not only their own subjects, but strangers also, in such matters as fasting, abstinence, observance of days of obligation, vows, etc. ^[12]

(c) Regular prelates have quasi- episcopal authority over their own subjects, and can do for them what Bishops can do for their subjects. Moreover, many privileges have been granted by the Popes to regular Orders, by virtue of which they can dispense not only their own subjects but others also.

(d) Although parish priests per se cannot dispense either in general or in particular laws (Can. 83), yet the power is expressly granted to them to dispense in particular cases and for a good reason even outside their parishes particular individuals and families subject to them, and within their parishes strangers also, from the common law of observing feast days and also from the observance of fasting or abstinence or of both fasting and abstinence (Can. 1245). Those who have the cure of souls in places where there are no parish priests in the strict sense have the same authority from the necessity of the case, from custom, and often by implicit or explicit grant. ^[13]

3. If there be a good and sufficient cause for granting a dispensation, the superior may ordinarily either grant it or refuse to do so, as he judges fit; but if serious public or private harm would follow from not granting a dispensation, charity may require that the favour should be granted. But even in that case, unless the inconvenience is so serious that it excuses from the obligation of the law, if a dispensation is refused, the law must be obeyed.

4. The power of granting dispensations in general but not for a particular case (Can. 85) is of wide interpretation, for it exists for the common good; a dispensation, however, is a wound inflicted on the law, for the law should be uniformly observed by all as far as possible, and so a dispensation is of strict interpretation, and when in doubt as to whether it extends to some particular case the law should be observed.

5. A dispensation granted for a country, province, or diocese, may be taken advantage of by all who are staying even for a time in the territory, but no one may use it outside the territory for which it is granted. The law for the time being does not bind within the territory dispensed, but it does bind outside. On the other hand, a personal dispensation, like a precept, follows the person, and may be used anywhere, unless specially restricted, as is the case with the dispensation to eat meat granted by the Bulla Cruciata, which cannot be used outside the limits named in the Bull. ^[14]

6. A dispensation ceases by being recalled by the legislator. One who has granted a dispensation by delegated authority may also for good reason recall his dispensation, and in that case the law begins to bind again. However, one who has been dispensed from a vow cannot again be bound by vow without his own free consent. The person dispensed may also renounce a dispensation granted in his favour, and, in the case of a dispensation granted from a vow, by renunciation of the dispensation the vow binds again. However, the obligation of a law can only be reimposed by the competent authority, so that the renunciation of a dispensation from a law must be accepted by the superior in order to be effective. A dispensation also ceases if the whole cause for granting it cease before the execution of the dispensation, or, if the cause is continuous, whenever it entirely ceases. And so if a dispensation from abstinence was granted on account of a weak state of health, the dispensation will cease and the law will again bind when the health has been completely established. If, however, a dispensation has been put in execution, or has been granted absolutely, it will not cease even though the cause no longer exists. And so a dispensation to marry, granted and already executed ad prolem legitimandam, will not cease though the child die before the marriage.

CHAPTER X

VARIOUS SPECIES OF LAW

SECTION I

The Natural Law

i. CERTAIN actions are in themselves conformable to right reason, while others are opposed to it. On account of the relation between parent and child, right reason tells us that it becomes a child to show love and reverence toward his parents; on the other hand, hatred and ill-treatment of one's parents are opposed to right reason. Conscience tells us, moreover, that it is our " duty " to love and reverence our parents, that we " ought "to do so, that we are " bound " to do so; thereby making known to us the will and precept of a superior, the will and command of God, the Author of nature, and our Lord and Master. He cannot be indifferent as to whether we follow the dictates of right reason or not; he necessarily, as he is good and holy, wills that right order should be observed by us.

The rules of conduct which right reason manifests to us, and conscience, the voice of God, commands us to follow, constitute the natural law, which is a participation in human reason of the eternal law of God, willing that right order should be observed, forbidding it to be disturbed.

2. The objects, then, of the natural law are all those actions which in themselves are conformable or not conformable to rational human nature. They are actions which are necessarily prescribed, because they are demanded by human nature, or, on the contrary, they are necessarily forbidden, because they are contrary to the demands of human nature. They are good or evil, not merely because they are commanded or forbidden by lawful authority, but because in themselves they are becoming or unbecoming for man to perform because human nature is what it is. This is the ground of the well-known distinction between mala in se and mala quia prohibita.

3. As rational human nature remains substantially the same, and its essential relations do not change, it follows that the duties which the natural law imposes on man do not change substantially either. The natural law, then, in itself and objectively is universal and unchanging; it binds all men at all times. However, it does not follow that the natural law is always and everywhere equally well known. In its broad general principles, indeed, it has been known and taught at all times; it would be impossible for human society to continue unless the general principles of the natural law were known and acted on. Any serious departure from the law of nature soon brings with it its own remedy and correction by the stern elimination of the delinquent. Still there may be, and there is, ignorance of particular details and applications of the law of nature, even in matters of importance and of frequent occurrence. This is true not only of savage and untutored races, not only of primitive races, but even of civilized and Christian peoples. Theologians readily admit this. Many theologians of note allow that among such peoples there may exist ignorance of the malice of fornication; they warn us that other acts against the natural law are sometimes done in good faith, without any knowledge of their malice. The presumption, then, is that among Christians the general principles of the law of nature are known, but the confessor must be prepared to meet with cases of ignorance of the particular details and applications of it.

SECTION II

The Positive Divine Law

I. Besides the natural law, there are certain positive precepts which God has imposed on mankind. These are known to us from the manifestation of the divine will which we have in revelation, and especially in the Old and New Testament. Theologians divide the positive laws of the Old Testament into ceremonial, judicial, and moral precepts. The ceremonial precepts had reference to the system of religious worship established by God under the Old Law, the judicial regulated the civil polity of the chosen people of God, and when the old dispensation gave place to the new at the coming of our Lord both ceased to have binding force. Our Lord, however, by no means abolished the moral precepts contained in the Old Law; on the contrary, he promulgated them anew and perfected them.^[15]

2. In the New Law of Christ there are no new moral precepts except such as follow from the truths of faith which our Lord made known to us, and from the institution of the sacraments. We are under moral obligation to believe explicitly in the Blessed Trinity and in the Incarnation, as well as in other articles of the Christian faith. We are bound to receive the holy Eucharist and other sacraments instituted by Christ. But besides such as these, it is the common teaching of theologians that the Christian dispensation contains no new moral precepts. If our Lord called his precept of love new, he did not mean that the great commandment did not bind under the Old Law, but only that he urged it anew, gave us new motives to practise it, and especially his own divine example and wish. He also corrected some false interpretations of the moral law, which were current among the Jews of his time; he developed what was implicitly contained in the moral precepts of the Decalogue, and he added to the precepts counsels of great perfection, which he proposed as the ideal of the Christian life, but which he did not command all to follow under pain of sin. In moral theology we abstain as a rule from treating of what concerns perfection; it is our task to distinguish between what is sinful and what is not, for the use of the confessor in the sacred tribunal of Penance.

3. The law of Christ is meant not for a particular nation, but for all men. Christ commanded his followers to preach to the whole world, to teach all men to observe whatsoever he had commanded, and the new dispensation was not to be merely temporary, like the old, but it was to last to the end of time.^[16]

SECTION III

On Ecclesiastical Law

We saw above that the Catholic Church has received from her divine Founder full and independent authority to make laws, binding upon all her children in matters which pertain to religion and the salvation of souls. She has constantly used this power which Jesus Christ gave her. Various collections of Church law were made from an early period in her history, but those which are contained in the Corpus Juris are the most celebrated. The Corpus Juris is usually divided into two volumes. The first contains the Decretum of Gratian, a Benedictine monk, who composed his work about the middle

1. St Thomas, 1-2, q. 90, a. 4.
2. Index librorum prohibitorum, 1900.
3. Pius IX, May 23, 1846; Can. 253.
4. Can. 335.
5. St Thomas, i-z, q. 96, a. 3.
6. Inn. III, c. 34, de Simonia; Trent, 34, c. i, de Ref.; St Thomas, 3-3, q. 104, a. 5.
7. Ben. XIV, De Synodo, 9, c. 8.
8. Inn. Ill, c. Super eo, de usuris.
9. Matt. xii.
10. Bucceroni, i, n. 172.
11. St Alphonsus, i, n. 190.
12. Can. 1245, 1313.
13. Concil. Westmon., d. 23, nn. 1,3.
14. " Intra limites tantum Hispanicae ditionis." A.S.S. 35 , p. 565.
15. Matt, v 17.
16. Matt, xxviii 19.