334. The Subjects of the Mosaic Law.--(a_Moral theology

by the Mosaic Law. God had chosen Abraham by gratuitous election to be

the forefather of the Messiah, and it was by gratuitous election that

He gave the Jews a Law which would lend them a special holiness

befitting the promises made their race. The Jews, therefore, were bound

to more things than other nations, as being the Chosen People; just as

clerics are bound to more things than the laity, as being the ministers

of God.

(b) The Gentiles were not bound by the laws peculiar to the Mosaic

Code, but only by the common precepts, natural and supernatural, that

were in force in the state of the Law of Nature. But it was permitted

to Gentiles to become proselytes, that by observing Mosaic rites they

might more easily and more perfectly work out their salvation.

335. The Duration of the Mosaic Law.--(a) The Law began when experience

had proved that knowledge is not sufficient to make man virtuous, that

is, at a time when, in spite of the Natural Law, the peoples were

turning to polytheism and vice: “The Law was given on account of

transgression” (Gal, iii. 19).

(b) The Law ended when experience had shown that external observance is

not sufficient for holiness, that is, at the time when Judaism was

degenerating into formalism, putting the letter before the spirit of

the Law: “What the Law could not do, God sending His own Son, hath

condemned sin in the flesh, that the justification of the Law might be

fulfilled in us” (Rom., viii. 3, 4).

336. Deuteronomy, vi. 1, describes the Mosaic Law as precepts,

ceremonies and judgments; and the commandments of the Old Testament can

be classified according to this threefold division. (a) The moral

precepts defined the duties to God and man that arise from the dictates

of reason and the Natural Law; (b) the ceremonial prescriptions were

determinations of the religious duties to God contained in the moral

law, and rules concerning the performance of worship based on the

positive ordinance of God; (c) the judgments were determinations of

social duties contained in the moral law; they were the civil or

political code of the theocratic nation which had its force from the

positive ordinance of God.

337. The moral precepts are contained in the Decalogue, which is a sum

of the whole Natural Law, inasmuch as the general principles of the

Natural Law are implicit therein in their immediate conclusions, while

the remote conclusions are virtually found in the Commandments as in

their principles (see 301).

338. The Decalogue expresses man’s duties: (a) towards God, viz.,

loyalty (First Commandment), reverence (Second), service (Third)--all

of which are Laws of the First Table; (b) towards parents (Fourth), and

all fellow-men, viz., that no injustice be done them by sins of deed

(Fifth, Sixth, Seventh), of mouth (Eighth), or of heart (Ninth,

Tenth)--all of which are Laws of the Second Table.

339. The further moral precepts which were added after the giving of

the Decalogue can all be reduced to one or the other of the Ten

Commandments. Examples: The prohibition against fortune-telling belongs

to the First; the prohibition against perjury and false teaching, to

the Second; the commandment to honor the aged, to the Fourth; the

prohibition against detraction, to the Eighth.

340. The ceremonial laws, which prescribed the manner of performing the

divine worship or of acting as befitted the Chosen People, and which

prefigured the worship and people of the New Testament, were numerous,

in order that the Jews might be more easily preserved from pagan rites

and customs. The ceremonies they regulated were of four kinds: (a) the

sacrifices through which God was worshipped and through which the

sacrifice of Christ was prefigured (e.g., the holocausts,

peace-offerings, sin-offerings); (b) the sacred times and places,

things and persons set apart in order to give more dignity to divine

worship and to foreshadow more distinctly the good things to come; (c)

the sacraments by which the people or sacred ministers were consecrated

to the worship of God and were made to prefigure Christ (e.g.,

circumcision and the consecration of Levites); (d) the customs which

regulated the details of life so that both priests and people might act

as became their special calling, and might be types and figures of the

Christian people (e.g., the laws about food, dress, etc.).

341. Unlike the moral laws, which had existed before Moses as the

Natural Law and which continue under the Christian dispensation, the

ceremonial laws were temporary. Thus: (a) before Moses other ceremonies

were observed by the patriarchs (e.g., the sacrifice of Abel, the

altars of Abraham and Jacob, the priesthood of Melchisedech, etc.); (b)

after the coming of Christ, distinctions of food, new moons, sabbaths,

and other Mosaic ceremonies were abrogated, since the figures of future

things had been superseded by rites that commemorated benefits that

were present.

342. We may distinguish four periods in the history of the Mosaic

ceremonial law: (a) from Moses until Christ, it was the divinely

ordained manner of worshipping God, and was obligatory for the Chosen

People; (b) at the death of Christ, when the New Testament began, the

Mosaic ceremonial ceased to be obligatory; (c) until the Gospel had

been sufficiently promulgated (i.e., until the destruction of the City

and the Temple of Jerusalem), the ceremonial law was permitted to

Jewish converts, not as prefiguring Christ, but as a form of divine

worship; (d) after the Gospel had been sufficiently proclaimed, it was

no longer lawful to conform to the Mosaic observances.

343. The judgments or judicial laws of the Old Testament were intended;

(a) to regulate the relations of the people of God to one another and

to strangers according to justice and equity, and thus to prepare them

for the coming of the Messiah; (b) to be, consequently, in some sort a

figure of the social constitution of the Christian people.

344. The judicial laws, like the ceremonial, expired with the New

Testament. But since, unlike the ceremonial laws, they were not

appointed directly as prefigurative of Christianity, their provisions,

if not opposed to Christian law, could be used as part of the civil

code of a Christian State.

345. There were four kinds of judicial precepts:

(a) those concerning rulers. The government was monarchical and

aristocratic, as being administered by Moses and his successors with

the assistance of a body of elders; but it was also democratic,

inasmuch as the princes were chosen from the people and by the people;

(b) those concerning citizens. Excellent laws concerning sales,

contracts, property, and the administration of justice, are laid down

in the Pentateuch;

nations, whether in peace or in war, was regulated by wise and humane

laws;

(d) those concerning families. The rights and duties of husband and

wife, parent and child, master and servant, were carefully and

considerately provided for.

346. The Law of the New Testament.--This is the special law given by

God through Christ to the whole world, and which endures till the end

of time. Its character will be understood most readily from a

comparison of it with the Law of the Old Testament.

(a) In both Testaments grace and the Holy Spirit are given through

faith in Christ (the internal law), and doctrines, commandments and

ceremonies are prescribed (the external law). But, whereas the Old

Testament is principally a law of works, the New Testament is

principally a law of faith (Rom., iii, 27); the former is concerned

mostly with the external conduct, the latter regulates, not only

actions, but also the internal movements of the soul, of which faith is

the first.

(b) In both Testaments men are justified and saved through faith and

works (Heb, xi., 39; Rom., i. 16), and not through the external written

law or the letter. But it is only through Christ, the author of the New

Law, that men are enabled to perform what the law requires: “The law

was given by Moses; grace and truth came by Jesus Christ” (John, i. 17).

347. Comparison of the Two Testaments from Other Viewpoints.--(a) The

aim of both Laws is to secure obedience to God and holiness for man.

But the New Testament, since given to those who were better prepared

and more perfect, unveils more clearly the mysteries of faith, enjoins

more perfect works, and supplements the Commandments with counsels of

perfection (cfr. the Sermon on the Mount).

(b) Both Laws make use of threats, promises and persuasion in order to

move men to obedience. But, as the Old Law was for those who were

spiritually but children, it dwells especially on the punishments to be

meted out to transgressors and the external rewards that will be given

to the obedient (the law of fear); whereas the New Law, being for those

who are spiritually mature, holds out as inducements chiefly the love

of virtue and rewards that are internal and spiritual (the law of love).

announced through God’s servants as the preparatory dispensation, the

New Law was proclaimed by the Son of God Himself as the final economy

of human salvation: “God, who at sundry times spoke in times past to

the fathers by the prophets, last of all in these days hath spoken to

us by His Son, whom He hath appointed heir of all things” (Heb, ii. 1).

348. Differences in the Precepts of the Two Laws.--(a) There is no

opposition between the commandments of the two Laws; for the ceremonial

and judicial precepts of the Old Law, which contained figure and

prophecy, are fulfilled in the precepts of Christ, while the moral laws

of the Old Testament are confirmed and perfected by the moral laws of

Christ: “I am not come to destroy, but to fulfill” (Matt., v. 17).

(b) There is no substantial difference between the faith and works of

the two Testaments. For, that which is now believed explicitly and

clearly, was believed implicitly and in figure in the Old Testament,

and the greater things that now are commanded were contained germinally

in the precepts of the Old Law.

349. The Old and the New Law Compared as to Difficulty.--(a) If we

consider the difficulty that arises from the fulfillment of external

works, the Old Law was much more difficult. For while the Law of Moses

imposed numerous and complicated ceremonies and observances, the Law of

Christ commands but few and simple rites. Of the Old Law St. Peter says

that it was a yoke, “which neither our fathers nor we have been able to

bear” (Acts, xv. 10)--that is, it was extremely burdensome; but of His

own Law Christ says: “My yoke is sweet, and My burden light” (Matt, xi.

30). Even the additions made by Christ to the Old Law (e.g., the

prohibition against divorce) really facilitate that which the Old Law

itself intended--viz., the perfection of man. Hence, the Old Law is the

law of servitude; the New Law, the law of liberty.

(b) If we consider the difficulty that arises from internal works, or

the dispositions and motives with which precepts are to be fulfilled,

the New Law is more difficult; for it inculcates a loftier piety and

gives more attention to the spirit with which God is to be worshipped.

But, since love is the all-inclusive commandment of Christ, and since

gladness and fervor are easy to the lover, the commandments of Christ

“are not heavy” (I John, v. 3).

350. The External Works Commended by Christ.--(a) Since the New Law is

the law of grace, it commands only those things by which we are brought

to grace, or by means of which we make use of grace already received.

We receive grace only through Christ, and hence there are commandments

regarding the Sacraments; we make right use of grace by faith that

worketh through charity, and hence there are the precepts of the

Decalogue to be kept.

(b) Since the New Law is the law of liberty, it does not determine the

details of the moral law, nor prescribe minutely how we must worship

God and observe justice to others, as was done in the ceremonial and

judicial laws of the Old Testament. Minor dispositions of this kind

have no necessary relation to internal grace, being morally

indifferent. Hence, Christ left many things free, to be determined

later according to conditions, either by the individual (in personal

matters) or by the spiritual or temporal authority (in matters of

public concern). It is contrary to the spirit of the Gospel, however,

that mankind should be oppressed with numerous and burdensome

observances.

351. The Internal Works Commanded by Christ.--In the Sermon on the

Mount were given the commandments of the New Law that summarize the

entire duty of the Christian as to his internal acts: “Everyone that

heareth these My words, and doeth them, shall be likened to a wise man

that built his house upon a rock” (Matt., vii. 24). Thus, there are:

(a) internal acts commanded as regards our own wills and purposes (we

must avoid not only external, but also internal sins and the occasions

of sin; we must not only do good, but we must have a good motive, not

placing our end in human applause or riches); (b) internal acts

commanded as regards our neighbor (we must not judge him rashly,

unjustly, presumptuously; nor must we trust him imprudently); (c)

interior dispositions with which we must perform our duties (we must

avoid inordinate cares, imploring and expecting the divine assistance;

but we must also avoid carelessness, having our minds set on the narrow

way, and eschewing seductions).

352. The Teaching of Christ on the Three Classes of Precepts: Moral,

Ceremonial and Judicial.--(a) As regards the moral precepts (i.e., the

Decalogue or Natural Law), not one jot or tittle was to pass away. But

so little was the soul of these precepts then recognized that Christ

gave a new commandment of love, by which His followers were to be

known; and He reduced the whole law to the two commandments of love of

God and love of our neighbor.

(b) As regards the ceremonial precepts (i.e., the forms of Jewish

worship), these were to be superseded. Christ declared the manner in

which God was to be worshipped, namely, in spirit and in truth. He

instituted the Sacrifice of the New Testament, appointed the ritual of

the Sacraments (e.g., of Baptism and the Eucharist), and taught a form

of prayer which was to be used by His disciples. Other things He left

to be determined by the Church.

theocratic nation), these ceased to be necessary with the coming of

Christ, whose Kingdom is spiritual and with whom there is no

distinction of Jew or Gentile, since His law is for all. In fact, with

the destruction of Jerusalem in A.D. 70, foretold by Christ, both the

Temple worship and the separate national life of Israel came to an end.

In correcting the false interpretations which the Pharisees put upon

various judicial precepts of their law (e.g., in showing them that the

law of retaliation and the law that public enemies should be put to

death did not authorize revenge and hatred), Christ indicated the

spirit that should animate all civil laws, namely, love of justice. He

left it to the wisdom of future lawgivers to apply the rule of justice

to the relations between man and man, nation and nation, as

circumstances would require.

353. The precepts by which Christ established the primacy of the Pope

and the hierarchy may be called judicial. But the details of this

constitution He left the Church to determine.

354. The Duration of the Law of Christ.--(a) The Beginning.--The New

Law was given through the revelation made by Christ and the Holy Ghost

to the Apostles; it was ratified at the Last Supper and in the death of

Christ, when the New Testament was proclaimed and the Old Testament

came to an end; it was promulgated, first at Jerusalem on the day of

Pentecost, and later throughout the world by the preaching of the

Apostles.

(b) The End.--The Law of Christ continues till the end of time; for

this generation--that is, this last period of world history under the

Christian dispensation--shall not end until Christ returns to judge

mankind; “Behold, I am with you all days, even unto the consummation of

the world” (Matt., xxviii. 20).

355. The Subjects of the Law of Christ.--(a) The Law of Christ is for

all: “Going, therefore, teach ye all nations. teaching them to observe

all things whatsoever I have commanded you” (Matt., xxviii. 19).

(b) The Law of Christ does not oblige all in the same way. Those

outside Christianity are obliged directly by the commands to believe

and to be baptized. Christians are obliged directly by the laws of

faith and works accepted in Baptism.

356. Ignorance of the Law of Christ.-(a) Outsiders may be in invincible

ignorance of the Law of Christ. For many persons through no fault of

their own, in times past or even today, have not heard the Gospel

message: “How shall they believe Him of whom they have not heard?”

(Rom, x. 14).

(b) Christians may be in invincible ignorance of the Law of Christ.

For, just as want of a preacher causes a pagan to be invincibly

ignorant of the necessity of Baptism, so a lack of instruction in

Christian doctrine might leave a baptized person inculpably ignorant

(e.g., of the duty of receiving the Eucharist).

357. Dispensation from the Law of Christ.--(a) Its Possibility.--It

cannot be denied that Christ could have dispensed from the positive

precepts of His law, either directly or through His Church; for those

precepts depend on His will, and, like every other legislator, He can

relax His law or delegate others to do so.

(b) Its Reality.--Some believe that Christ granted dispensations from

His Law (e.g., that He freed the Blessed Virgin and the Apostles from

the duty of receiving Baptism, that he authorized the Apostles to give

Baptism without mentioning the Trinity), but these opinions seem

unlikely and are not well supported. Some also believe that the power

of loosing granted the Church (Matt., xvi. 19) includes the power of

dispensing from the Law of Christ. The contrary, however, seems more

probable. For the power of loosing is certainly limited to such matters

as the good of the Church and of souls requires, and it is more

advantageous for the Church and its members that the laws given by

Christ Himself should be absolutely unchangeable, in order that the

unity of the Church and its dependence on its Founder may be more

manifest.

On the other hand, the alternate opinion has solid grounds and

arguments, and merits due consideration. Some authors distinguish a

twofold law of Christ; (a) absolute, that which obliges immediately and

of itself independently of any action of man; e.g., the law concerning

the necessity of Baptism or determining bread and wine as the matter of

the Eucharist; (b) hypothetic, which presupposes some human action;

e.g., the law of the indissolubility of matrimony which urges after man

has freely willed to be bound by the laws of matrimony. Similarly, the

binding force of vows presupposes the taking of the vow.

As to the absolute law, no human authority may dispense from it. As

already indicated, the good of the Church, its unity and stability,

seem to demand an unchangeable law. In regard to the hypothetical law,

many of the more modern authors assert that the Holy Pontiff can at

times dispense. The power of loosing implies a power of dispensing in

the Church which has been used in particular cases; e.g., _ratum et non

consummatum_ matrimony. Moreover, the power to dispense seems extremely

useful and almost necessary for the prudent and wise governing of the

Church. For, with a change of circumstances an individual might be

impeded from doing a greater good because of a preceding act of will;

e.g., one might be impeded from embracing the religious life because of

a prior vow to remain in the world to assist in Catholic Action (see

Fanfani, O.P., _Theol. Moral. Manuale_, Vol. I, n. 134).

358. Interpretation of the Law of Christ.-(a) Private interpretation

(_epieikeia_ or equity) is used in extraordinary cases, not foreseen by

the lawgiver, and it declares that a particular case does not fall

under the Law. This kind of interpretation applies only to human laws,

since God foresees things not only universally, but also in particular

(cfr. on Natural Law, 315). (b) Public interpretation of the Law of

Christ is made by the Church, in virtue of the commission: “Teach all

things whatsoever I have commanded” (Matt, xxviii. 20).

359. Public Interpretation of the Law of Christ--(a) The Church is able

to give a declarative interpretation of the Positive Divine Law--that

is, to explain its meaning, to show what cases are comprehended in the

law, what cases are not, when one is obliged, when one is excused, etc.

Example: The Church interprets the doctrine of Christ on the

indissolubility of marriage, explaining when the bond is absolutely

indissoluble, the conditions under which it may sometimes be dissolved,

etc.

(b) The Church is able to give determinative interpretation of the

Positive Divine Law--that is, to settle in what manner a law must be

fulfilled. Examples: Christ gave the command that the Eucharist should

be received, but it was the Church that determined when and how often

one must receive Communion to comply with the wishes of Christ. Christ

instituted only generically the essential rite of some Sacraments,

leaving it to the Church to determine the rite more specifically.

360. The Law of Christ and Impossibility.--(a) Impossibility does not

excuse from a law, in which an act is necessary not because it is

prescribed, but is prescribed because it is a necessary means without

which, even if one be not guilty of negligence, salvation cannot be had

(necessity of means). Example: Infants who die without Baptism are not

held guilty of neglecting the Sacraments, but lack of it deprives them

of the supernatural bliss promised by Christ. Only Baptism confers

regeneration, and only the regenerated are capable of the vision of God.

(b) Impossibility can excuse from a law in which an act is necessary

because it is prescribed, and which therefore makes one guilty of sin,

if one willfully neglects it (necessity of precept). Example: An adult

who dies without the Eucharist cannot be saved if he was guilty of

grave negligence; but he can be saved, if it was not his own fault that

he did not receive Holy Communion. The Eucharist increases supernatural

life, but inculpable lack of it does not exclude from that life.

361. Impossibility--or what is called impossibility--does not always

excuse even from those divine laws which have only the necessity of

precept.

(a) Physical impossibility is the lack of power to perform an act; for

example, it is physically impossible for a blind man to read. This kind

of impossibility, of course, excuses from guilt and punishment.

Example: Titus is dying and thinks of the command that he should

receive Viaticum. But he is unable to receive Communion without

vomiting. Hence, in his case the impossibility excuses from the divine

command.

(b) Moral impossibility is the inability to perform an act without

serious inconvenience; for example, it is morally impossible for one

who has weak eyes to read small print. This kind of impossibility does

not excuse, if a greater evil will result from the non-observance of

the law than the evil of inconvenience that will result from its

observance. Examples: Eleazer would not eat the meats forbidden by the

law of Moses, preferring to die rather than give public scandal (II

Mach., vii. 18). The command of Christ that pastors minister to their

flocks obliges, even if it involves danger of death, when there is a

great public necessity (as in time of pestilence) or an urgent private

necessity (as when an infant is about to die without Baptism).

362. Moral impossibility excuses from divine laws that have only

necessity of precept, if the inconvenience is serious, even when

compared to the evil of violating the law; for God does not wish

commands freely instituted by His will to oblige more rigorously than

the commands of the Natural Law (see 289, 317). Examples: Christ

excused David for eating the loaves of proposition (which was forbidden

by the law of Moses) on account of urgent necessity. A most grave

external inconvenience excuses from the law of integrity of confession

(see Vol. II).

363. What is the nature of the Church’s action in dissolving the bond

of marriages that are not ratified, or not consummated after

ratification (see Vol. II), with reference to Christ’s law of

indissolubility? (a) Some see in this an application of other divine

laws that limit the law of indissolubility, and that were enunciated by

Christ Himself in His teaching on the supremacy of faith over other

bonds, the superiority of virginity to marriage, the power of the

Church in loosing, etc. (b) Others see in this an interpretation,

declarative or expansive, of the law of indissolubility. (c) Still

others regard these dissolutions as a removal of the proper matter of

the obligation contracted through the act of the human will (cfr. the

Natural Law, 312). The power of loosing would apply here as in the case

of vows. Some authors call this removal of matter “annulment of act,”

“remission of debt,” “permission”; while others call it “dispensation”

(see 314). Those who consider the dissolution of _ratum non

consummatum_ matrimony as “dispensation” list the law of

indissolubility as hypothetical positive law (see 357).

364. Counsels.--In addition to its precepts (which are obligatory), the

New Law contains counsels, which are optional, but which are expressly

recommended.

365. A counsel is a moral direction by which one who is willing is

advised to prefer a higher to a lower good, in order thereby to tend

more efficaciously towards perfection and to merit a greater reward.

(a) A counsel is not something commanded. Example: Our Lord’s direction

to the disciples on their first mission that they should not carry

their sustenance with them was required as a duty that they might learn

to trust in Providence. Hence, it was not a counsel.

(b) A counsel is not everything good that is not commanded. Example:

Marriage is not commanded to all, but it is not a counsel, since the

opposite good, viz., celibacy, is better (I Cor., vii. 38).

366. That which is only counselled as to its actual performance, is

commanded as to its acceptance by the will for a case of necessity.

Example: Our Lord’s direction that good be done to personal enemies

does not command that one actually confer favors on them outside of the

case of necessity (this is only counselled), but only that one be so

charitably inclined that one is ready to help even a personal enemy who

is in serious need.

367. The superiority of the counsels may be seen from the attitudes men

take to the goods of this world.

(a) Some are taken up entirely with the things of earth, making

temporal goods the end of life and the standard of action. These do not

keep the Commandments and cannot be saved.

(b) Some use the goods of this world not as ends, but as subordinate to

things that are higher. These keep the Commandments and will be saved;

but their solicitude about temporal concerns lessens the attention they

could give to things of the spirit.

themselves as completely as possible to the things of God. These

observe the counsels, and can more readily attain to holiness and

salvation; for, being freed from numerous cares about earthly things,

they can devote themselves more easily and earnestly to things that are

heavenly.

368. The Three Counsels.--There are many counsels given in the Gospels,

but all can be reduced to three, according to the three chief earthly

goods that may be surrendered, and the three kinds of temptation that

come from those goods.

(a) The counsel of poverty requires that one give up entirely external

goods or wealth, from which comes the concupiscence of the eyes: “If

thou wilt be perfect, go sell what thou hast, and give to the poor, and

thou shalt have treasure in heaven” (Matt, Xix. 21).

(b) The counsel of chastity requires that one renounce entirely carnal

goods of pleasure, from which arise the concupiscence of the flesh: “He

that giveth his virgin in marriage, doth well; and he that giveth her

not, doth better” (I Cor., vii. 38).

the soul which is one’s own will, from which comes the pride of life:

“Come follow Me” (Matt, xix. 21).

369. The counsels can be followed in two ways. (a) They are followed

completely, when one accepts them as a rule for one’s whole life, as is

done by those who embrace the state of perfection in the religious

life, taking by vow the three evangelical counsels of poverty, chastity

and obedience. (b) They are followed partially when one practises them

in particular instances. Examples: A wealthy man who gives to the poor

when there is no obligation to do so, practises the counsel of poverty

in that case. A person who renounces his own legitimate wishes in some

matter, practises the counsel of obedience in that case, as when he

confers some favor on one who has offended him, or pardons a debt.

Married persons who practise conjugal abstinence for the sake of

religion, follow a counsel of chastity (I Cor., vii. 5).

Art. 4: HUMAN LAW

(_Summa Theologica_, I-II, qq. 95-97.)

370. Definition.--Since human perversity often needs a check in

regulations that are not expressly contained in the Natural or in the

Divine Law, other laws must be made by society, drawn from those higher

laws as conclusions or added to them as determinations, in order to

meet special circumstances and necessities.

371. Division of Human Laws.-Human laws are variously divided.

(a) According to the difference of legislators, laws are either

ecclesiastical or civil.

b) According to their mode of derivation from the Natural Law, laws

belong either to the law of nations (_jus gentium_) or to civil law. To

the _jus gentium_ belong those laws which are derived from the Natural

Law as conclusions from premises, e.g., the right to private property

without which men cannot live peacefully in society. To civil law

belongs whatever is derived from Natural Law by way of positive

determination by a legislator; e.g., Natural Law dictates that the

evil-doer be punished; but that the punishment take a particular form,

imprisonment, exile, death, is a determination depending upon the will

of the legislator.

The _jus gentium_ is not international law which derives its force and

sanction from the free will of the legislator. The law of nations is

common to all men and derives its force from the conviction of men that

such a law is demanded for the good of mankind. It is not a secondary

precept of the Natural Law which is derived from the primary precepts

necessarily. Rather it is based upon a contingent set of circumstances;

it does not spring from man’s nature absolutely considered, but from

the way in which man acts and reacts in his society.

affirmative (i.e., preceptive) or negative (i.e., prohibitive). An

affirmative law obliges always, but not for every occasion; a negative

law obliges always, and for every occasion. Example: The Third and

Fourth Commandments are always in force, but it is not necessary to

elicit a positive act of compliance at every instant. The other

Commandments, which are negative, are not only in force always, but it

is necessary at every instant to omit what they forbid.

(d) According to the obligation which they impose, laws are either

moral, penal, or moral-penal. Moral laws oblige under pain of sin,

penal laws under pain of punishment, moral-penal laws under pain of

both.

(e) According to their inclusiveness, laws are either personal or

territorial. The former affect the person for whom the law is made, and

oblige him even when he is outside the territory of the lawgiver. The

latter affect the territory, and hence do not oblige a subject when he

is outside the territory affected by the law.

(f) According to their effect, prohibitive laws are either merely

prohibitive or irritant. The former make what is forbidden illegal, the

latter make it also void.

372. Qualities.--The objects or content of human law must be of such a

character: (a) that they do not conflict with the Natural or the Divine

Law; (b) that they be beneficial to the community for which they are

made.

373. Laws fail to be of public benefit in such cases as the following:

(a) if they are made without a broad view of the public good, which has

regard for different classes of people and various interests, and which

provides for the future as well as for the present; (b) if, losing

sight of the fact that the majority are not perfect in virtue, the

lawgivers require so much that the law falls into contempt, and graver

evils result than would have happened otherwise. Hence, it is advisable

that human laws confine their prohibitions to graver misdeeds,

especially those that are harmful to others and to society, and

restrict their commands to such good acts as promote the common weal.

Multiplicity of laws, excessive penalties for minor offenses, cruel and

unusual sanctions, lead to lawlessness.

374. Human laws should not prescribe what is too difficult.

(a) They should not prescribe heroic virtue, unless the common safety

demands it, or a subject has voluntarily obliged himself to it.

Example: Soldiers in war and pastors in time of pestilence must expose

themselves to danger of death; but for ordinary occasions the law

should not oblige one to risk one’s life or other great good.

(b) They should not prescribe agreement with the mind of the legislator

or a virtuous performance of what is prescribed, unless the thing

ordered itself demands this. Examples: The law of annual Confession and

of the Easter Communion requires, not only that these Sacraments be

received, but that they be received worthily, for an unworthy

Confession is no Sacrament, and an unworthy Communion does not satisfy

the command of Christ, of which the Church command is but a

determination. On the other hand, the Lenten fast observed by one who

is not in the state of grace is an act good in itself and satisfies the

law. He who hears Mass on a holyday, not knowing that it is a holyday,

satisfies the obligation, though he had no intention of fulfilling it.

375. Obligation of Human Laws.--All human laws that are just, whether

they be ecclesiastical or civil, made by believers in God or

unbelievers, are obligatory in conscience, (a) From the beginning the

Church has made laws and imposed them as obligatory (Acts, xv. 29; I

Cor., vi. 4; I Cor., xi. 5; I Tim., v. 9-12), and has recognized as

obligatory the laws of the State, without regard to the moral or

religious qualifications of the rulers (I Peter, ii. 13-16; Rom., xiii.

1-7).

(b) Human laws are necessary. The Natural Law does not prescribe

definite penalties, while the Positive Divine Law prescribes only such

as are remote and invisible; and hence, if there were no human laws

holding out the threat of determined and present punishments, the

Divine laws would be contemned. Moreover, since the higher laws are

sometimes unknown, or prescribe no time, place or manner of

accomplishment, or do not command things that would be useful for their

observance, it is necessary that there be laws made by man to secure

the better knowledge and fulfillment of the laws given by God Himself.

376. A human law is unjust in two ways:

(a) if opposed to the rights of God. Examples: The command of Pharaoh

that the Hebrew male children be murdered (Exod., i. 17), the command

of Antiochus that his subjects sacrifice to idols (I Mach., ii. 16-20),

the command of the Sanhedrin that the Apostles should cease to preach

(Acts, v. 29);

(b) if opposed to the rights of man. This happens in three ways: First,

when the purpose of the law is not the common good, as when the

lawgiver seeks only his own profit or glory; secondly, when the maker

of the law has not the requisite authority; thirdly, when the law

itself, although for the common good and made by competent authority,

does not distribute burdens equally or reasonably among the people.

Examples: Achab and Jezabel, in the affair of the vineyard of Naboth,

had in view not the public, but their own private benefit (III Kings,

xvi). The sentence of death pronounced on our Lord by the Sanhedrin was

illegal, because, among other reasons, the body was not assembled

according to law, and hence had no authority to give sentence. The

commands given the Israelites by Pharaoh (Exod., v. 18), and to their

subjects by Oriental despots (I Kings, viii), were unjust, because the

former discriminated against the Israelites, and the latter bore down

too heavily on all the people. The former civil laws that prescribed

the same penalty of hanging for a slight misdemeanor (such as the theft

of a loaf of bread by a boy) as for the capital crimes of piracy or

murder, the Stamp Act of George III, and some modern laws that sentence

to life imprisonment those who have been four times convicted of slight

offenses, are more recent examples of unjust laws.

377. Obedience to unjust laws is not obligatory in the following cases.

(a) If a law is opposed to the rights of God, it is not lawful to do

what that law commands or permits, nor to omit what it forbids.

Examples: If a law permits one to practise polygamy, or commands one to

blaspheme religion, one may not use the permission or obey. If a law

forbids one to give or receive Baptism, it has no force. (b) If a law

is certainly opposed to the rights of man in any of the three ways

mentioned in the previous paragraph (376, b), it does not of itself

oblige in conscience, since it lacks some essential condition of a true

law, and even the consent of the majority or of all does not make it

just. However, it may oblige accidentally, on account of the greater

evils that would follow on disobedience, such as scandal, civil

disturbances, etc. The duty of subjects is to remonstrate against such

a law and to work for its repeal.

378. The obligation of all laws is not the same in kind, or degree. (a)

Moral laws oblige one to do what is commanded or to omit what is

forbidden, as a duty owed in conscience; hence, he who violates a law

of this kind is guilty of moral fault. Penal laws oblige one to follow

what they prescribe, if one would be free from guilt before the law and

not liable in conscience to the penalty prescribed; hence, he who

violates a penal law is guilty of juridical fault, and, if he further

illegally resists the penalty, he becomes guilty also of moral fault.

(b) Moral laws are not all of the same obligatory force, some of them

obliging under grave sin, others under venial sin.

379. The following human laws are recognized as moral laws: (a)

ecclesiastical laws, with few exceptions; (b) civil laws that confirm

the Eternal or Divine Law, or that pertain directly to the common

welfare, such as the laws that determine the duties of public

officials, the rights of inheritance, etc.

380. The following human laws are generally regarded as merely penal:

(a) ecclesiastical laws which expressly state that their observance is

not required under pain of sin (e.g., the statutes of many Religious

Orders); (b) civil laws of minor importance, or which the legislator

imposes as a purely civil duty (e.g., some traffic regulations).

381. Moral laws oblige under grave sin if the two following conditions

are present: (a) if the thing prescribed by the law is of great

importance, because of its nature or circumstances; (b) if the lawgiver

intended to impose a grave obligation.

382. A matter of light moment cannot be made the object of a law that

binds under grave sin, for this would impose an intolerable burden, and

would thus be contrary to the common good. What is unimportant in

itself, however, may become important on account of its purpose or

other circumstance.

383. The intention of the legislator to impose a grave moral obligation

is recognized either: (a) from his own declaration, as when a church

law is commanded under threat of the divine judgment; or (b) from

circumstances that indicate such an intention, such as the gravity of

the subject-matter of the law or the kind of penalty it prescribes, the

general opinion of authorities, or the common practice of the community.

384. By obliging to the observance of what they command and the

avoidance of what they forbid, laws indirectly oblige to what is

necessary for such obedience. (a) Hence, the law obliges one to make

use of the ordinary means for its fulfillment. Examples: He who has not

used ordinary diligence to know the law, sins against the law if he

violates its prescriptions. He who eats meat on a day of abstinence,

because he neglected to provide himself with other food, is guilty of

sin. (b) The law obliges one to use sufficient diligence in removing

impediments to its fulfillment or dangers of its violation. Examples:

The law of hearing Mass on Sunday obliges one not to stay up so late on

Saturday that fulfillment will be impossible. The law of fasting

obliges one to avoid dangerous occasions of its violation.

385. Interpretation.--Though laws are carefully framed as to language,

doubts about their meaning will often arise--in ordinary cases, because

of lack of understanding or changes of conditions, and in extraordinary

cases, because from the circumstances the law seems inapplicable. Hence

the need of explaining the law, which is done in ordinary cases by

interpretation, in extraordinary cases by _epieikeia_ (see 411 sqq.).

386. Interpretation is a genuine explanation of the law, that is, one

that states the meaning of the words of the law according to the

intention the lawgiver had in mind when he chose them. It is of various

kinds.

(a) According to the author from whom it proceeds, interpretation is

authentic, if it comes from the lawgiver himself or from another

authorized by him; it is usual, if it comes from common usage (i.e.,

from the manner in which the law is customarily observed); it is

doctrinal, if it is made by learned men according to the rules of

correct exegesis.

(b) According to the effect, interpretation is declarative, if it

clears up what was obscure in the law; it is supplementary, if it

extends or limits the law, by adding to or subtracting from the cases

included under it.

strict or wide, Strict interpretation gives to a word of law that least

inclusive and most proper signification it bears (e.g., it understands

“son” to stand for son by birth). Wide interpretation gives to a word a

more inclusive and less proper signification (e.g., it understands

“son” to stand for son by birth or by adoption).

387. Those Subject to Law.--Only those are morally obliged to observe

human law who are subjects of the lawgiver and who have the use of

reason. (a) Those who are not subjects in any sense are not bound, for

to obligate by law is an act of authority and jurisdiction; (b) those

who have not reached the age of reason, or who are habitually insane,

are not themselves morally bound, since they are incapable of moral

obligation. Of course, they may be restrained as to acts, and their

rights may be determined.

388. The lawgiver himself, even though not subject, is held to observe

the laws he makes. Thus: (a) if the lawmaking power resides in a

legislative assembly, each legislator is subject to the body and hence

to its laws; (b) if the lawmaking power is vested in an individual, he

is not subject to the coactive force of his own laws, since he cannot

punish himself; but he is subject to their directive force, inasmuch as

the higher law of nature requires that the superior show good example

by observing what he requires of others.

389. Change of Law.--The growth of knowledge and experience, or the

change of social circumstances, requires now and then that human laws

be improved or adapted to new conditions. But, since laws derive a

great part of their influence from custom, they should not be changed

unless the break with custom is compensated for by the urgent necessity

of the new law, by its manifest advantage, or by the evident iniquity

or harmfulness of the old law, In brief, the common good should be the

norm by which to decide whether a law should be retained or changed.

390. Constitutional law, as being fundamental and organic, is more

immutable than ordinary law. (a) If given to a society established

according to the positive ordinance of a superior, it cannot be

abrogated or modified by the legislative authority of that society,

since this would be contrary to the will of the founder. Hence, the

Church has no power to change the fundamental constitution given her by

Christ, who prescribed the religious society as established by Him to

be necessary. (b) If a constitutional law is given to a society which

is perfect and necessary from the law of nature, such constitution can

be modified for extraordinary reasons and in the special ways provided

(e.g., by amendments approved by the people).

391. The Law of Custom.--Custom (i.e., a long-continued practice that

has acquired binding force) is able to establish a new law or to do

away with an old law. For the will of the lawgiver is manifested not

only by words, as happens in the written law, but also and more clearly

by repeated and continued acts, as happens in the case of the unwritten

law of custom. In a democracy it is the consent of the people who

follow the custom as law that imposes the obligation; in a monarchy it

is the consent of the ruler who permits the custom.

392. With reference to their legal effects, there are three kinds of

customs: (a) customs according to the law, which are those that confirm

by use an existing law; in this way custom interprets law (see 386);

(b) customs beside the law, which are those that introduce a new

obligation that is not prescribed by any written law; in this way

custom establishes law; (c) customs contrary to law, which are those

that remove the obligation of a previous law; in this way custom

repeals, at least in part, the law to which it is opposed.

393. Custom has not the power to establish or repeal a law, unless it

possesses the requisites of law itself (see 285). Hence arise the

following conditions:

(a) Since the exercise of the legislative power requires freedom,

customs do not possess legal force unless they have been practised

freely. Hence, a custom that has been established by force does not

suffice;

(b) Since laws can be made only for perfect societies, customs have not

the force of law, unless they are practised by a perfect society, or by

a majority of its members who are representative. Hence, a custom

observed by a family or by a minority of the voters in a body that has

its own jurisprudence has not the status of law;

make or unmake law, unless they have the approval of the ruling power.

In a society where the legislative function rests with the people

(e.g., in the ancient democracy of Athens), the fact that they follow a

custom with the purpose of enacting it into law or of using it against

an existing law is sufficient approval. But if the supreme power is not

with the multitude, their customs do not obtain the force of

legislative acts, unless approved by the constituted authority;

(d) Since law needs to be promulgated, a custom, to have the effect of

law, must be practised by public acts through which it becomes known to

the people as a whole.

394. Customs that have the other requisite conditions begin to be

obligatory or derogatory as soon as the approval of competent authority

is had. (a) If the approval is given expressly, the custom has the

force of law at once; (b) if it is given tacitly, inasmuch as the

lawgiver, knowing the custom and being under no restraint, does not

disapprove, the custom has the force of law as soon as tacit consent is

recognized by the learned and prudent; (c) if it is given by the law

itself, which explicitly accepts reasonable customs, the custom has the

force of law when it has lasted for ten years, or other length of time

prescribed.

395. If the superior disapproves of a custom or maintains diplomatic

silence for fear of greater evils, his consent is withheld, and the

custom cannot be deemed as of legal force.

396. There are other conditions necessary that a custom may acquire the

force of law. (a) Since a law is an ordinance knowingly imposed by the

will of the legislator, a custom does not constitute a law if it is

followed through the erroneous conviction that it is already a law, or

if there is nothing to indicate a will to make it obligatory. Signs of

the intention to raise a custom to the dignity of a law are the

punishment of transgressors of the custom, the observance of the custom

even at the cost of great inconvenience, the opinion of the good that

it should be followed, etc. (b) Since a law cannot prescribe except

what is reasonable and for the common good, a practice opposed to the

Natural or Divine Law, or expressly reprobated by written law as an

abuse, or one that is injurious to the welfare of the community, cannot

become unwritten law through custom.

397. There are special conditions in order that a custom may do away

with an existing law. (a) A written law is not repealed unless the

legislator wills to take away its obligation, and hence desuetude or a

custom contrary to law does not abrogate a law unless it manifests a

purpose not to be obligated by what the law prescribes. This it does if

the whole people regard a certain law as a dead letter, or feel that

circumstances or the common welfare require the opposite of what the

law requires, and have no scruple in acting uniformly according to this

conviction.

(b) A written law is not repealed, if it is immutable, or if a change

would be prejudicial to the common interest; similarly, therefore, a

custom cannot abolish a law, unless this law is one that can be

abrogated by human acts, and that is not essential to the public good.

Hence, customs contrary to the Commandments or to the Law of Christ,

customs that are expressly condemned in Canon Law as corruptions,

customs that encourage lawlessness or afford occasions of sin, can

never do away with a law, no matter how long or by how many they are

practised.

398. Those who start a custom contrary to law are sometimes in good

faith, and hence are not guilty of disobedience. (a) It may be that

they are in ignorance of the law, but have the interpretative will not

to be bound by it; (b) it may be that they know the law, but sincerely

think that, on account of conditions, it has ceased of itself.

399. Even when a custom has been started in bad faith, it may continue

through good faith, and so become not a violation, but an abrogation of

the law. Changed conditions may make the law useless or harmful; or the

very fact that it is no longer observed may make it too difficult to

enforce.

400. Today customs do not so often attain the force of law. Moreover,

so difficult is it to know whether any custom has all the qualities

necessary for establishing, modifying, or abrogating a law that only an

expert is competent to judge in this matter.

401. Dispensation.--Human law has not the immutability of the Divine

Law. Hence, not only may it be changed, but it may also be dispensed.

Dispensation is a relaxation of the positive law made for a particular

case by him who has the competent authority.

(a) It is a relaxation of the law--that is, it takes away the

obligation of the law. Thus, it differs from permission, which is

fulfillment of what is conditionally allowed by the law.

(b) Dispensation is made for a particular case--that is, it is granted

when the provisions of the law, though beneficial to the community as a

whole, are not suitable for a particular person or case. Thus, it

differs, first, from abrogation and derogation, which remove the

obligation of the whole or a part of the law for the entire community;

and, secondly, from privilege, which is granted permanently as a

private law.

legislator or others who have the lawful power. Thus, it differs from

_epieikeia_ and private interpretation, which are made by those who

have no power to dispense.

(d) Dispensation is a relaxation of the positive law, for since the

Natural Law is immutable (see 305), no dispensation can be given from

its requirements. Thus, dispensation differs from the official

declaration or interpretation of the Natural or Divine Law (see 315).

402. Those who have the power to dispense from a law are the lawgiver

and others duly authorized. (a) The lawgiver himself can dispense as

follows: in his own laws, since he was able to make them; in the laws

of his predecessors, since his authority is equal to theirs; in the

laws of his inferiors, since they are his subordinates. (b) Others can

dispense who have received from the law, from their superior, or from

custom the necessary authority to dispense.

403. Those Who May Be Dispensed from a Law.--(a) Since dispensation is

an act of jurisdiction, only those can be dispensed who are in some way

subject to the dispenser. Since, however, the jurisdiction used in

dispensing does not impose an obligation but grants a favor, it is held

that he who has the power to dispense others may also dispense himself,

if his power is not restricted. (b) Since dispensation is an act of

authority, it may be exercised even in favor of one who is absent, or

ignorant of the dispensation or unwilling to accept it. But, since as a

rule favors should not be forced, the validity of a dispensation

generally depends upon the consent of the one dispensed.

404. The power of dispensing has for its end the common good, and

therefore it must be exercised: (a) faith fully, that is, not for

reasons of private interest or friendship; (b) prudently, that is with

knowledge of the case and with judgment that there are sufficient

reasons for dispensation.

405. In order that the reason for a dispensation be sufficient, it is

not required that it be so grave as to constitute a physical or moral

impossibility of keeping the law, since the obligation of the law

ceases in the face of impossibility (see 317, 487), without the need of

dispensation. Hence, lesser reasons suffice for dispensation.

406. A dispensation must be granted whenever the law itself or justice

requires it. The following cases are usually given: (a) when there

exists a reason that requires, according to law, that a dispensation be

granted; (b) when the common good, or the spiritual good of an

individual, or his protection from some considerable evil, demands the

concession of a dispensation.

407. A dispensation may be either granted or denied, when the case does

not demand it and the superior after careful investigation is not

certain whether the reason is sufficient or insufficient; otherwise, a

greater responsibility would rest on the superior than the law can be

thought to impose--viz., that of attaining certainty where it cannot

easily be had.

408. He who dispenses without a sufficient reason is guilty of the sin

of favoritism, and is responsible for the discontent and quarrels that

result. He is guilty of grave sin thus: (a) if serious scandal or other

inconvenience is caused, even when the dispenser is the lawgiver

himself; (b) if the law obliges under grave sin and the dispensation is

not granted by the lawgiver, but by an inferior who usurps the right to

dispense.

409. The subject of dispensation is guilty of sin: (a) if he asks a

dispensation when he knows for certain that there is no sufficient

reason for it; (b) if, having been denied a dispensation, even though

unjustly, he acts against the law; or if he knowingly makes use of an

invalid or expired dispensation.

410. Sufficient reasons for a dispensation can be reduced to two

classes: (a) private welfare (e.g., the difficulty of the law for the

petitioner, a notable benefit he will receive through the dispensation,

etc.); (b) public welfare (e.g., the benefits that are secured to the

community, or the evils that are avoided through the dispensation).

411. _Epieikeia_.--Since human laws regulate particular and contingent

cases according to what usually happens, and since they must therefore

be expressed in general terms, exceptional cases will occur that fall

under the law, if we consider only the general wording of its text, but

that do not fall under the law, if we consider the purpose of the

lawgiver, who never foresaw the exceptional cases and would have made

different provision for them, had he foreseen them. In such exceptional

cases legalism insists on blind obedience to the law-books, but the

higher justice of _epieikeia_ or equity calls for obedience to the

lawgiver himself as intending the common welfare and fair treatment of

the rights of each person.

412. _Epieikeia_ may be defined, therefore, as a moderation of the

words of the law where in an extraordinary case, on account of their

generality, they do not represent the mind of the lawgiver; which

moderation must be made in the manner in which the lawgiver himself

would have made it, had he thought of the case, or would make it now,

were he consulted. Hence, _epieikeia_ differs from the various causes

that take away the obligation of a law, for it supposes the

non-existence of obligation from the beginning and non-comprehension in

the law.

Thus: (a) it is not revocation, desuetude, restrictive interpretation,

or dispensation; (b) it is not cessation on account of impossibility;

413. In its use _epieikeia_ is at once lawful and dangerous.

(a) It is lawful, for it defends the common good, the judgment of

conscience, the rights of individuals from subjection to a written

document, and from oppression by the abuse of power;

(b) it is dangerous, for it rests on the judgment of the individual,

which is prone to decide in his own favor to the detriment of the

common good as well as of self.

414. _Epieikeia_ by its very nature imposes certain limits on its use.

(a) It is based on the fact that a certain case is not comprehended in

a law, because the legislator did not foresee it.

Hence, _epieikeia_ is not applicable to the Divine Law; for the Divine

Lawgiver foresaw all cases that could arise, and so excluded all

exceptions (see 315). This is clear as regards the Ten Commandments and

other precepts of the Natural Law, since they deal with what is

intrinsically good or bad, and are unchangeable (see 307). But it

applies also to the prescriptions of the Positive Law of God, and

apparent cases of _epieikeia_, such as the eating of the loaves of

proposition by David (I Kings, xxi. 6), can be explained by the

cessation of law or divine dispensation. Examples: One may not excuse

certain modern forms of cheating on the plea that they were not thought

of when the Decalogue was given. One may not omit Baptism on the ground

that Christ Himself would have excused from it, had He foreseen the

circumstances.

(b) _Epieikeia_ is based on the principle that the words of a law must

be subordinated to the common good and justice. Hence, it is not

applicable to those laws whose universal observance is demanded by the

common good--that is, to irritant laws. Any hardship suffered by an

individual through the effect of such laws is small in comparison with

the injury that would be done to the common welfare if there were any

cases not comprehended in such laws; for irritant laws are the norms

for judging the validity of contracts and other acts, and public;

security demands that they be uniform and certain. Example: One may not

contract marriage with a diriment impediment, on the plea that the

Church would not wish the impediments to oblige under the serious

inconvenience that exists in one’s case.

415. The dangers of _epieikeia_ also place limitations on its use.

(a) There is the danger that one may be wrong in judging that the

lawgiver did not wish to include a case under his law. If this is not

certain, one should investigate to the best of one’s ability, and have

recourse, if possible, to the legislator or his representative for a

declaration or dispensation. It is never lawful to use _epieikeia_

without reasonable certainty that the legislator would not wish the law

to apply here and now.

(b) There is the danger that one may be in bad faith in deciding that

the common good or justice requires the use of _epieikeia_; the motive

in reality may be self-interest or escape from obligation, Hence, a

person should not use _epieikeia_ except in necessity, when he is

thrown on his own resources and must decide for himself; and, even

then, he must be sure that he acts from sincerity and disinterestedness.

416. Cases in which the use of _epieikeia_ is lawful are the following:

(a) Epieikeia in a wide sense--that is, a benign interpretation made by

a private individual that a particular case is not comprehended in the

intention of the lawgiver, because the latter had not the power to

include it--may be used for all cases in which the opposite

interpretation would set the law up in opposition to the common welfare

or would work injustice to individuals. Example: The law that goods

borrowed must be returned to their owners yields to _epieikeia_, if

there is question of putting weapons into the hands of one who would

use them against the public security or for the commission of murder;

(b) _Epieikeia_ in a strict sense--that is, the judgment that a

particular case is not included in the intention of the lawgiver,

because the latter had not the wish to include it--may be used for all

those cases in which the opposite interpretation would suppose in the

lawgiver a severity that is not likely. “The rigor of the law may be

extreme injustice” (Cicero, _De Officiis_, I, 10). Example: Titus has

the opportunity to make a notable sum of money on a Sunday morning, but

cannot make use of the opportunity without missing Mass that day. Caius

on a fast day feels well, but is tired and will be not a little

inconvenienced if he fasts. Both Titus and Caius may use _epieikeia_,

for the Church does not wish to be unkind, nor, generally speaking, to

have her laws oblige rigorously and for every case.

417. Though all human law is subject to _epieikeia_, the practice of

the civil law does not always allow it. (a) Action on individual

responsibility makes one guilty of technical violation. Example:

Balbus, fearing that his house may be robbed or he himself assaulted,

borrows a revolver and practises shooting. He had not time to get the

necessary permit, but argued that necessity knows no law. But, if he is

arrested, the court may hold him guilty of violating the law. (b)

Action in a court of equity, however, will give relief for cases not

provided for in law. Example: One may obtain an order from the court

restraining a neighbor from injury, when the law itself gives only the

right to recover damages for injury done.

Art. 5: ECCLESIASTICAL LAW

418. The Church, being a perfect and independent society, has the power

to make laws for its members in order to promote the common spiritual

welfare. These laws are not an encroachment on the liberty of the

Gospel, for Christ Himself bestowed on the Church legislative and other

governmental powers suitable to her mission. The charter of the

legislative authority of the Church is contained in the words of

Christ to Peter: “I say to thee that thou art Peter, and upon this rock

I will build My Church, and the gates of hell shall not prevail against

it. And I will give to thee the keys of the kingdom of heaven. And

whatsoever thou shalt bind upon earth, shall be bound also in heaven;

and whatsoever thou shalt loose on earth, it shall be loosed also in

heaven” (Matt., xvi. 18, 19; see also Matt., xviii. 17; Luke, x. 16).

419. The character of laws made by the Church is as follows:

(a) their purpose is to guide and assist the individual that he may

more easily and perfectly fulfill the laws of Christ, and to protect

and promote the welfare of the Church as a whole;

(b) their contents generally do not impose what is the height of

perfection, but what is the minimum necessary for salvation (see 374);

(e) their number, unlike that of the laws of the Synagogue, is few.

There are only six precepts of the Church that bind all the faithful;

the other laws of the Church do not all oblige each individual, some

being for prelates, some for priests, some for religious, some for

judges, etc.;

(d) their obligation is not so strict as that of the laws of the Old

Testament, for they are more easily changed or dispensed.

420. General Law of the Church.--The general law of the Church is found

in the five books of the Code of Canon Law, promulgated by Benedict XV

on May 27, 1917. It applies only to the Latin Church, except in those

matters that of their nature affect the Oriental Church as well, and it

has been in force from Pentecost Sunday, May 19, 1918.

421. The effects of the Code on the older legislation are as follows:

(a) it retains in their entirety liturgical laws that are not expressly

corrected; agreements of the Holy See with various nations, even if

they are opposed to the Code; favors, privileges and indults that are

not revoked (Canons 2-4);

(b) disciplinary laws of ecclesiastical origin opposed to the Code are

to be held as revoked, even if they are particular, unless the contrary

is provided. Disciplinary laws of ecclesiastical origin omitted by the

Code are retained in force, if they are particular; they are abrogated,

if they are general and not contained at least implicitly in the

Code; if a general law decreed a penalty, it must be expressly

mentioned in the Code to retain force (Canon 6);

expressly disapproved by it, must be corrected, even if immemorial;

when they are not expressly disapproved by the Code, they may or may

not be continued, as a rule, according as they are immemorial--or one

century old--or not (Canon 5).

422. The rules laid down for the interpretation of the Code are as

follows: (a) in those parts where the Code agrees with the older

legislation, it is to be interpreted by means of the latter; (b) in

those parts where it certainly disagrees with the older legislation, it

is to be interpreted from its own phraseology (Canon 6).

423. Lawgivers in the Church.--The Pope, as Vicar of Christ and Visible

Head of the Church, has supreme legislative power in the Church (Canon

218): “Thou art Peter, and upon this rock I will build My Church ....

And I will give to thee the keys of the kingdom of heaven, etc.”

(Matt., xvi. 18, 19). Thus, the Pope can legislate: (a) for the whole

Church, either alone or with the body of the Episcopate subject to him

in an Ecumenical Council, either directly or through Congregations; (b)

for any part of the Church, either directly or through representatives.

Thus also, by Papal concession, legates may legislate for a place to

which they are sent, _Praelati nullius_ for a territory over which they

are placed, General Chapters for a Religious Order, and the like.

424. The Bishops, “placed by the Holy Ghost to rule the Church of God”

(Acts, xx. 28), have legislative power within their own territory,

dependently on the Pope (Canon 335). (a) They can make laws, each for

his own diocese, either in or out of a synod; (b) when gathered

together in council, provincial or plenary, they can legislate for

ecclesiastical provinces, or for all the faithful of their country.

425. Subject-Matter of Church Law.--The end of the Church being the

glory of God and the salvation of souls, she can legislate concerning

all matters that are sacred or that refer, directly or indirectly, to

the satisfaction of man or the worship of God (see Leo XIII, Const.

_Immortale Dei_, d. 1 Nov. 1885).

(a) The Church can call to mind those things that are already

prescribed by the Divine Law, Natural or Positive; and, although she

cannot dispense in these laws (see 313-814 and exception as to

hypothetical positive law in 357), she can interpret them

authoritatively, and can decide when obligations of the Divine Law,

that depend upon an act of the human will, cease (see 315-316).

(b) The Church can determine those things that were left undetermined

in the Divine Law. Examples: The manner in which the Lord’s Day is to

be sanctified, the times and frequency with which the Divine law of

Communion is to be fulfilled, the way in which the obligation of

fasting is to be complied with, etc.

whenever this will promote the better observance of His law (e.g., many

church laws for the clergy and religious, for the conduct of worship,

for administration, etc.).

426. The acts that may be commanded by the Church are of various kinds.

(a) The Church may command acts that are purely external (e.g.,

fasting) and acts that are partly external and partly internal, that

is, those external acts to which, from the nature of things or from

law, a special moral act of the intellect or will must be joined (e.g.,

a true oath, a worthy confession or Communion).

(b) The Church may command acts that are purely internal, that is, acts

of the intellect or will that are not necessarily connected with any

external act (such as meditation, the intention in applying Mass,

ctc.), whenever she is explaining, applying, or determining the Divine

Law, or acting in virtue of the power of Christ. Examples: The Pope may

define a dogma to be accepted internally. A confessor may impose as

penance a pious meditation. The Church prescribes the days when pastors

must intend to offer Mass for their people. A religious superior may

command a spiritual retreat.

given, the Church cannot legislate regarding acts that are purely

internal. For unlike the divine Legislator, who sees the internal acts

of the soul and who can pass judgment on them, the Church cannot read

the heart or judge the conscience. Hence, it would appear useless for

the Church to give commandments about acts that elude her knowledge,

all the more so since the Divine Law has given commands and

prohibitions regarding internal acts and no one can escape the judgment

of God.

427. Those Bound by General Laws.--The general laws of the Church

oblige all and only such persons as are at once subjects of the Church

and capable of receiving a law (Canon 12).

(a) By Baptism one becomes a member of the Church, and hence it is

the baptized who are subject to ecclesiastical laws; (b) by her laws,

the Church commands only human and deliberate acts or omissions, and

hence it is only those who can reason that are subject to those laws.

although they have attained the use of reason, have not yet completed

their seventh year are not bound by purely ecclesiastical law. Specific

exceptions are stated in the law. Thus: (1) Canons 854, Sec.2, and

940, Sec.1, regarding the reception of the sacraments in danger of

death, Canon 859, Sec.1, stating the precepts of Easter Communion,

and Canon 906, containing the precepts of annual confession, declare

that the law in these matters is binding on persons having the use of

reason, regardless of the actual completion of the seventh year, The

law of fasting in Canon 1254, Sec.2 binds after the completion of the

twenty-first year. (2) Canon 1099 explicitly exempts non-Catholics, in

their own marriages, from the ecclesiastical form of marriage; also

Canon 1070 exempts them from the impediment of disparity of cult. (3)

The habitually insane are considered as infants under seven (Canon 88,

Sec.3). Accordingly, although they are bound by the Divine Law during

lucid moments, they are not usually bound by purely ecclesiastical laws

during this period.

428. By the unbaptized are here understood, not only those who have

never received Baptism (such as infidels, pagans, Mohammedans, Jews,

catechumens), but also those who were baptized invalidly. The divine

law of receiving Baptism and entering the Church applies to these

persons, but, as long as they are unbaptized, they are not subjects of

the Church. Thus: (a) directly they are not obliged by any

ecclesiastical law, and hence it is not sinful in itself to ask them to

do what is forbidden by such laws (e.g., work on a holyday); (b)

indirectly they become subject to ecclesiastical law when they enter

into law-governed relations with the baptized who are subject to church

law. Example: An unbaptized person who marries a Catholic is married

invalidly, unless the law on dispensation has been observed.

429. Baptized non-Catholics include heretics and schismatics. Thus: (a)

objectively, these persons are obliged by ecclesiastical laws, unless

they are excepted by the law itself, and hence it is not lawful

directly to induce them to transgress a Church law (e.g., to eat meat

on Friday); (b) subjectively, they are generally excused from formal

sin in the non-observance of Church laws, and it is not a sin to

co-operate materially in such non-observance (e.g., by giving meat on

Friday to a Protestant in good faith who requests it or wishes it).

430. It is held that the Church is more lenient as regards those

baptized as non-Catholics, that is, those who were born and brought up

in some non-Catholic sect. Thus: (a) laws that have for their object

the sanctification of the individual (such as fasting and abstinence,

Sunday Mass, etc.), are not insisted on for them, since this would hurt

rather than help their spiritual interests; (b) laws that have for

their object the protection of the public welfare (such as the laws

regarding mixed marriage), apply also to baptized non-Catholics.

Other authors do not admit this distinction and hold that these

non-Catholics are bound by the laws of the Church, since Canon 87

expressly states: By Baptism man is constituted a person in the Church

of Christ with all the rights and duties of Christians.

Apostates and excommunicated persons are certainly bound by all

ecclesiastical laws.

431. Oriental Catholics are not bound by pontifical laws (Canon 1)

except in the following cases: (a) when the matter is dogmatic; (b)

when the law implicitly extends to them, since it contains a

declaration of natural or divine law; (c) when the law is explicitly

extended to them. An example of (a) is Canon 218; of (b) Canon 228,2;

of (c) Canons 622, Sec.4 and 1099, Sec.1, 3.

432. It is a general rule that all persons baptized, as just explained,

are subject to ecclesiastical laws, if they are habitually able to

reason; but that they are not subject to those laws, if they are not

habitually able to reason.

First Rule.--Persons habitually able to reason are all those who in

their normal state are able to understand the difference between right

and wrong, that is, the majority of those who have completed seven

years of age. Such persons are subject to ecclesiastical laws, even

when actually they are unable to reason on account of temporary

intoxication, delirium, derangement, unconsciousness, etc. Hence, one

who would offer meat on Friday to a person momentarily unbalanced on

the plea that his condition excused him from the law, would do wrong;

for the state of passing irresponsibility excuses from formal sin (see

249), but not from the law.

Second Rule.--Persons habitually unable to reason are all those who

have not yet learned the difference between right and wrong (e.g.,

infants and idiots), or who have permanently lost all knowledge of

right and wrong (e.g., the hopelessly insane). These persons are not

bound by ecclesiastical laws, at least not by those that are directive.

Hence, in itself it is not wrong to give meat on days of abstinence to

such persons, even when they are Catholics.

433. Exceptions to the first rule just given are as follows:

(a) According to Canon Law, the age of reason comes legally when one

has completed seven years (Canon 12). If a boy or girl is able to

reason before that age, he or she is not obliged by laws that are

purely ecclesiastical, although it is advisable that parents accustom

their children to the hearing of Mass, to abstinence, etc., as soon as

this can be conveniently done. If a child has passed the seventh year

and does not appear able to reason, he is not bound by ecclesiastical

laws.

(b) According to Canon Law, the age of puberty is fixed for males at

the completion of fourteen years of age, for females at the completion

of twelve years of age (Canon 88, Sec.2). These who have not attained

this age are excused from all penal laws, unless a law expressly states

the contrary; for on account of the want of mature judgment they

deserve leniency (Canon 2230).

has completed twenty-one years (Canon 88, Sec.1). Minors in the exercise

of rights are subject to the power of parents or guardians, except

where the contrary is declared by the law, as is the case for the

reception of the Sacraments and the choice of a religious life (Canon

89). They are not obliged by the law of fast (Canon 1254, Sec.2).

434. There are some exceptions to the second rule given in 432. Thus,

those laws of the Church that grant favors or that invalidate acts can

apply even to those who are habitually unable to reason (such as

infants and the perpetually demented); for laws of this kind are not

directive of the acts of subjects.

435. Those Bound by Particular Laws.--The particular laws of the Church

oblige all those who are subject to her general laws, and who become

subject to the laws of a locality by reason of domicile or personal

presence (Canon 13, Sec.2).

436. There are two kinds of domicile. (a) A true domicile or home is

acquired in a place in two ways: immediately, when one takes up one’s

abode there, with the intention of remaining permanently or

indefinitely; finally, after ten years, when one has lived there so

long, even though there was no intention of remaining permanently

(Canon 92, Sec.1). (b) A quasi-domicile or residence is acquired in a

place in two ways: immediately, when one takes up one’s abode there

with the intention of remaining there for at least the greater part of

the year; finally, after the greater part of the year, when one has

lived there so long (Canon 92, Sec.2).

437. With regard to abode, four classes of persons are distinguished in

Canon Law (Canon 91): (a) an inhabitant, who is one that has a domicile

in a place and is present there; (b) a resident, who is one that has

a quasi-domicile in a place and is present there; (c) a stranger, who

is one that is outside the places of his domicile and quasi-domicile;

(d) a _vagus_ or homeless person, who is one that has no domicile or

quasi-domicile anywhere.

438. The rules as regards those who are not strangers are: (a)

inhabitants and residents are subject to the diocesan, provincial, and

other particular laws of their territory (Canon 13, Sec. 2); (b) the

homeless are subject to the local laws of the territory where they are

present (Canon 14, Sec. 2).

439. The rules for strangers with reference to general laws (Canon 14,

Sec. 1, n. 3) are; (a) a stranger is obliged to follow these laws, if

they are observed in the place where he is, even though they are not in

force in the place of his domicile or quasi-domicile; (b) a stranger

is not obliged to observe general laws, if they are not in force where

he is, even though they are in force in the place of his domicile or

quasi-domicile. Thus, the general law of abstinence on Friday does

not oblige one who is travelling in a place where the law has been

suspended, even though he would be obliged by it at home. The traveller

would do better, however, to keep to the practice of his home.

440. The rules for strangers with regard to the particular laws of

their own domicile or quasi-domicile (Canon 14, Sec. 1, n. 1) are;

(a) they are obliged in two cases--first, when those laws are not

territorial but personal and obligatory on them everywhere (as is the

case with the statutes of religious superiors), and secondly, when the

violation of a territorial law would be harmful in its own territory

(as when by fiction of law one must be considered as present on account

of the law of residence); (b) they are not obliged in other cases.

Thus, if one is travelling on a feast-day that is a diocesan holyday

in one’s home diocese, but not in the diocese where one is, one is not

obliged to hear Mass.

441. The following are the rules for strangers with regard to the

particular laws of the place where they are: (a) they are obliged in

two cases--first, when natural law itself requires that a territorial

law be observed by all, and secondly, when the Church includes

strangers among those who are subject to a territorial law; (b) they

are not obliged in other cases. Thus, if a person is travelling on a

feast-day that is observed as a holyday of obligation both in his home

diocese and in the diocese where he is, but not as a general holyday

of the Church, he is not obliged to hear Mass; for the law of his home

diocese does not bind him, since he is out of its territory, and the

law of the diocese where he is does not bind him, since he is not a

subject of that law.

442. The natural law requires that strangers should conform themselves

to local laws in the following cases:

(a) when non-observance would be a cause of scandal, which the natural

law commands one to avoid. In this sense we understand the rule of

St. Ambrose: “When you are at Rome, do as the Romans do.” Hence, if

a stranger would cause real scandal by eating meat on a local day of

abstinence, he would be obliged to abstain from it;

(b) when a local law deals with the solemnities required for validity

of contracts (Canon 14, Sec. 1, n. 2). If strangers were not obliged

by laws of this kind, they could take advantage of the inhabitants, a

thing that is contrary to natural justice. Thus, “the place rules the

act”;

order (Canon 14, Sec. 1, 11. 2); for the natural law demands that

public safety be guarded. Hence, a stranger who commits a crime is

subject to the penalties of the local law (Canon 1566).

443. Examples of territorial laws that oblige even strangers according

to the precept of the Church are the laws that require all, even

strangers, to follow the Calendar of the Church where they celebrate

Mass, and to say the _collectae imperatae_ prescribed by the bishop of

the local diocese.

444. The rules given for strangers can be applied also to those who are

in places exempt from local jurisdiction (e.g., in the monasteries of

exempt regulars). The exempt are those who by fiction of law are held

to be outside the territory of every diocese, and are subject, not to

the local bishop, but directly to the Pope (Canon 515).

445. There are various cases, however, in which exempt religious are

subject to the territorial laws of the diocese where they are. Thus:

(a) when they accept parishes in a diocese, they are subject to the

Ordinary in those matters that pertain to the parishes; (b) when the

common good or the avoidance of scandal requires it, they should

conform to a diocesan law.

446. Those who have a personal privilege can use it anywhere, for a

personal privilege, like a personal precept, follows the person, not

the territory.

447. Promulgation.--Church laws are promulgated as follows: (a) the

laws of the Holy See are promulgated by publication in the official

periodical, _Acta Apostolicae Sedis_. They become effective three

months from the date of publication, unless from the nature of the case

they oblige at once, or it is otherwise provided in the law itself

(Canon 9); (b) the laws of a bishop are promulgated in the manner he

decides, generally by publication in the official periodical of the

diocese. They become effective as soon as published, unless it is

otherwise provided in the law itself (Canon 335, Sec. 2).

448. When a law has been promulgated and become known, if it begins

to be observed, it is said to be accepted; if it is not observed, it

is said to be not accepted. This acceptance is not essential to law.

Hence: (a) the observance of a law by the people is not necessary for

the obligatory force of the law, for otherwise the lawgiver would be

without real authority; (b) the approval of ecclesiastical laws by the

State is not necessary for their validity, since Church and State are

distinct and independent societies within the proper sphere of each.

449. A law that has been promulgated may fail to obtain force in the

following ways: (a) through contrary custom, already existing and

not excluded by the law, or then arising to abrogate the law (see

391 Sqq.); (b) through appeal entered with the lawgiver. Thus, if a

bishop deems a law of the Pope unsuited to his diocese, he explains the

reasons to the Holy See, and pending the answer it is considered that

the lawgiver does not wish the law to oblige.

450. Irritant Laws. Laws Based on Presumption.--There are two classes

of human laws that deserve particular mention on account of special

difficulties regarding them: (a) irritant laws, which would seem to be

unjust, since they declare null what according to natural law would

be valid; (b) laws based on presumption, which would seem to be of

uncertain force, since presumptions are often contrary to fact.

451. An irritant or inhabilitating law is one that expressly or

equivalently declares that certain defects make an act void or

voidable, or a person incapable. Such laws are just, even when made by

human authority, since it is the common good that makes them necessary,

and the natural law itself requires that the common good be promoted.

452. Irritant laws are of various kinds.

(a) They are morally or juridically irritant, according as that which

is taken from the irritated act is either the natural value it has in

conscience, or the positive value it derives from the law. Hence, an

act may be legally null (i.e., have no value that the law recognizes

or protects) and at the same time morally valid (i.e., of just as much

force in conscience as though no irritant law existed).

(b) Irritant laws are merely irritant or irritant and prohibitive,

according as they make an act invalid but not illicit, or both invalid

and illicit. Thus, a law that requires certain formalities for making

a will invalidates the act of writing an informal will, but does not

make it an offense; but the church law of diriment impediments makes a

marriage contracted with one of these impediments both null and sinful.

as the legislator does not or does intend them as punishments. For

example, the law of clandestinity is merely irritant; the law regarding

the impediment of crime is probably both irritant and penal.

453. Laws that are merely irritant do not oblige one in conscience to

omit the act, but only to suffer the effect of irritation; but laws

that are both irritant and prohibitive oblige one in conscience to omit

the act. Example: In itself, it is not unlawful to make an informal

will, but it is unlawful to marry with a diriment impediment.

454. As to the time when irritant laws obtain their effect, the

following points are important.

(a) Ecclesiastical voiding laws oblige at once in conscience,

although like other laws of the Church they are not retroactive,

unless the contrary is provided, and they do not oblige in case of a

doubt concerning the law. Example: If espousals are made without the

canonical formalities, there is no duty to live up to them as such,

either in conscience or before the law.

(b) Civil voiding laws are generally only civilly irritant, for as

a rule external means are sufficient for the purpose of those laws;

thus, they produce civil irritation at once, but moral irritation only

after pronouncement by the courts. Hence, after a judicial sentence

the voided act becomes such morally, since the decision is founded on

a presumption of common danger (see below, 459). Examples: One who has

received money through a will which he knows to be informal (i.e.,

legally invalid), may retain possession until the civil authority

declares that he has no rights to the money. But, on the other hand,

one who has been disinherited through a will naturally good, but not

made in due form, has the right to contest, if we except the case of

pious bequests (see Vol. II).

455. Laws that make an act voidable or rescindable do not irritate

before declaration of nullity by a judge. Hence, an act that is

rescindable according to law retains its natural force until the

court has decided against it. Example: Acts that were done under the

influence of grave and unjust fear, or that were induced through

deception, are held as valid until declared null by a judge.

456. As to the effects of ignorance on acts irritated by law, the Code

states that ignorance of irritating (invalidating) and inhabilitating

(disqualifying) laws does not excuse from their observance, unless the

law expressly states otherwise (Canon 16, Sec. 1). Moralists discuss

the influence of ignorance (as well as force or fear) on such acts as

follows: (a) if the law is irritant and not penal, it has its effect,

in spite of ignorance, oversight, etc.; for this the common good

requires. Example: One who marries his cousin in good faith, being

invincibly ignorant that it is against the law, contracts invalidly;

(b) if the law is irritant and penal, the irritation being decreed

solely as a punishment, ignorance, oversight, etc., sufficient to

excuse from fault, excuse also from the penalty of irritation; for

penalty presupposes fault. Before the law, however, ignorance and

error as to law or penalties are not presumed but must be proved.

(Nevertheless, it must be noted that according to some authors no

penalty is necessarily or primarily intended in ecclesiastical

irritating and inhabilitating laws. Though punishment actually results

from the matrimonial impediment of crime, for example, the impediment

as such primarily is a personal disqualification intended to protect

the dignity of the sacrament and good morals. Ignorance, then, does

not excuse from it. Some authors maintain that this is true of all

ecclesiastical disqualifying laws.)

457. Generally speaking, _epieikeia_ may not be used in the

interpretation of irritating and inhabilitating laws. Since they

transcend the individual welfare, they demand uniform observance of

all subject to them. Some authors permit the use of _epieikeia_,

however, in particular cases in which the law itself aims to protect

the individual, whereas its observance would tend rather to harm

the individual or at times even the interests of the community.

Accordingly, it seems probable that an irritant law may cease in case

of impossibility or of a most grave inconvenience that is common.

Example: If in a pagan country Christians were so few that they could

marry only infidels, and if distance or other circumstances made it

impossible to seek a dispensation, the diriment impediment of disparity

of worship would seem to cease for those Christians.

458. Some authors hold that an irritant law may also cease on account

of impossibility, or of a most grave inconvenience that is only

private; but this opinion cannot be deemed certain. An example of

private inconvenience is the case of an invalidly married person who is

near to death and unable to seek the dispensation from the impediment

that has made the marriage null.

459. A law based on presumption is one in which the lawgiver rules for

certain cases according to what experience shows in their regard--viz.,

that such cases are generally dangerous, or indicative of a particular

fact. These laws are not of uncertain force, for the cases in which

they cease to oblige are few and definite.

460. When a law is based on a presumption of common danger and that

danger does not exist in a particular instance, the law nevertheless

obliges (Canon 21); for the end of the law is the common good, and if

it ceased for an individual whenever its presumption of danger was

not true in his case, everyone could persuade himself that the law

did not apply to him, and thus the common good would be defeated.

Examples: The law against the reading of irreligious books is based on

the presumption of common danger of sin, the law against clandestine

marriages on the presumption of common danger of fraud; hence, they

oblige even in the particular instances where these dangers are absent.

Examples of laws based on the presumption of common danger can be found

in Canons 199; 409, Sec. 1; 420; 422; 1022; 1028; 1114; 1116; 1138;

1396; 1398.

461. When a law is based on the presumption of a particular fact that

usually happens in the cases with which the law is concerned, and the

fact in an individual instance did not happen, does the law oblige?

(a) In conscience the law does not oblige of itself, because

presumptions must yield to the truth; but it may oblige accidentally,

if non-observance would cause great public or private harm. Example:

The law presumes that a person born and brought up among Catholics has

been baptized, and is therefore subject to the church laws. But if, in

fact, the person was never baptized, he is not subject to those laws,

as long as he remains unbaptized, unless there be some accidental

necessity of keeping them, such as the danger of scandal.

(b) Before the public authority the law in question does oblige until

the non-existence of the fact presumed by the law has been proved in

the manner required by law. Example: When parties contract marriage

according to the form prescribed by the Church, the presumption is

that the contract was valid, and, as long as that presumption is not

overcome, the Church will not sanction a new marriage by either of the

parties. But if it can be proved in court that threats or violence

produced lack of consent, the obligation not to contract a new marriage

will terminate before the law.

462. Fulfillment of Law.--With reference to the manner of fulfilling

a law there are a number of questions to be considered: (a) as to the

external acts, whether or not one can fulfill the law for another,

whether or not the omission of some slight detail renders compliance

insufficient, whether or not he who cannot fulfill the whole law is

bound to fulfill a part of it, whether or not several obligations can

be satisfied at the same time or by the same act, etc.; (b) as to the

internal acts, whether or not one must have the intention of meeting

the wishes of the lawgiver, whether or not one must be in the state of

grace, etc.

463. Personal fulfillment is not always necessary; for an affirmative

law requires either that some thing be given, or that some personal act

be performed. (a) When the law requires that some thing be given (e.g.,

that taxes be paid), the obligation can be satisfied through another,

since a thing can be transferred from one person to another, who agrees

at least interpretatively; (b) when the law requires that a personal

act be performed (e.g., that Mass be heard on Sunday), the obligation

cannot be satisfied through another, for actions cannot be transferred

from one to another.

464. Minute fulfillment is not always necessary; for sometimes the

minor details of the fulfillment of a law are expressly prescribed,

sometimes they are not.

(a) If these details are required by the law itself or by the nature

of the case, the law is not satisfied if they are neglected. Example:

Friday abstinence ends exactly at midnight, and hence to eat meat even

one minute before midnight is to break that abstinence.

(b) If the law does not prescribe minute details, these are not

required for the fulfillment of the obligation; for laws should not be

unduly burdensome. Example: One who is a few minutes late for Mass does

not miss Mass, if he is present for the essential parts of the Mass.

465. Partial fulfillment is required of him who cannot make complete

fulfillment, only when the part is commanded for its own sake; for that

which is commanded by a law is considered by the lawgiver as either an

indivisible unit, or as a whole composed of parts that have singly an

independent moral value and obligation.

(a) If the thing commanded is morally an indivisible unit (e.g., a

pilgrimage to a shrine), he who is not able to fulfill the whole law is

bound to nothing. Example: One who has made a vow to go on pilgrimage

to a distant sanctuary, is not bound to go part of the way, if he is

unable to make the entire journey.

(b) If the thing commanded has parts that contribute to the end of

the law, he who is able to fulfill only one or more such parts is

obliged according to his ability; if it is certain that he can perform

even a part, he is bound to that; if it is not certain that he can

perform even a part, it would seem that generally he is excused from

all. Examples: A cleric who can say some but not all the Hours of his

Office, is obliged to say what he can. A person who can certainly

abstain, but who cannot fast, is bound during Lent to abstain.

466. Simultaneous fulfillment by one act of several obligations is

lawful, if the obligations differ only materially. They are said to

differ only materially, if the motive of the legislator in giving

different commands about the same thing is the same in each instance;

they differ formally, if the legislator has a different motive in each

instance. The motive is recognized either from the express declaration

of the lawgiver, or from interpretation given through authority or

custom.

(a) When two commands differ only materially, it can be presumed that

the legislator is not unwilling that they be fulfilled by one and the

same act, unless it is clear that he wishes them to be fulfilled by

distinct acts. Example: If one falls sick at Easter time and receives

the Viaticum, it is not necessary for him to receive Communion again in

order to make his Easter duty; for the divine law of Viaticum and the

church law of Easter Communion have the same motive, and hence can be

fulfilled by one and the same Communion.

(b) When two commands differ formally, it can be presumed, unless the

opposite is manifest, that the legislator wishes them to be complied

with by distinct acts. Example: If a confessor imposes a fast as a

penance, this penance cannot be performed on a fast day; for the motive

of the law of fast is general, that of the sacramental penance is

particular.

467. Simultaneous fulfillment by several acts of several obligations

is sometimes possible, sometimes impossible. For the acts prescribed

by different laws are either capable or incapable of being done at the

same time. Thus, it is possible to hear a Mass and to say a penance

of some Hail Marys at the same time. But it does not seem easy for an

ordinary person to give attention to four or more Masses at the same

time.

(a) If the acts do not impede one another and the legislator is not

unwilling, several laws can be fulfilled at the same time. Example: If

two Masses are being said on adjoining altars, one can hear both--the

one to satisfy the Sunday obligation, the other to perform a penance

received.

(b) If the acts impede one another, or if the legislator wishes his

laws to be fulfilled at distinct times, the different obligations

cannot be satisfied simultaneously. Examples: If a distracted person

has received a penance to hear six Masses, he cannot hear them all

at once, on account of the division of attention necessary. If the

confessor told a person to hear Mass “three times,” the latter cannot

satisfy by hearing three Masses at one time.

468. When a law prescribes not only what is to be done, but when it

is to be done, the time must be observed. But the obligation does not

always cease with the expiration of the time.

(a) If the time set by the law is a limit beyond which the obligation

ceases, he who has not complied within that time has no further

obligation. Examples: He who did not fast on Christmas Eve, would

not be obliged to fast on Christmas Day. He who did not hear Mass on

Sunday, would not be obliged to hear Mass on Monday.

(b) If the time set by the law is not a limit to terminate the

obligation, but a date fixed in order to insist on the obligation, he

who has not complied within the prescribed period, is nevertheless

still obliged. Examples: He who has not made the Easter duty by Trinity

Sunday, is obliged to receive Communion after Trinity. He who has not

paid a debt on the day required by law, is bound to pay it after that

day.

469. It depends on the intention of the lawgiver whether the time he

prescribes for fulfillment is a limitation of the obligation or not.

The intention of the lawgiver is known either from the words or purpose

of the law, or from custom.

470. If the law declares that some duty must be performed within a

determined period, allowing freedom for earlier or later performance

within the period, the following points must be considered. (a) A

person is not obliged to comply early, if he intends to comply before

the period has ended. (b) He is obliged to comply early, if he foresees

that later he will not be able to do what is required. Examples: If a

person who has not made his Easter duty has the opportunity to receive

Communion on Easter Sunday, and will not have another such opportunity

till Christmas, he is obliged to receive on Easter Sunday. But, if he

can communicate any Sunday during the Paschal time, he is not bound to

do so on one of the early Sundays. If one can hear an early Mass, but

not another Mass, on a holyday, one must hear the early Mass.

471. Just as one may not delay fulfillment until after the time set

by law, so neither may one anticipate fulfillment before the time

determined, unless the law may be considered to allow this. Examples:

If a person has heard Mass on Saturday, he has no right to make this

count for the following day. A rosary said before confession cannot be

considered as performance of the penance, if in confession one is given

the rosary to say.

472. It is held that a cleric who said the Breviary in the morning,

just before he was ordained subdeacon and undertook the obligation of

the Office, satisfied by that anticipated recitation; likewise, that a

traveller who heard Mass in a place where a holyday of obligation of

the general law was not in force, has satisfied by anticipation, if

later in the morning he reaches as his destination a place where the

holyday is observed. For in both these cases the law intends that the

Office be said, or the Mass be heard within the day.

473. If a person who is now able to do what the law requires, foresees

that he will not be able to do this when the time set by the law

arrives, he is not obliged to anticipate fulfillment, even when he has

the privilege of anticipation. Examples: A cleric who at 2 p.m. is able

to anticipate Matins for tomorrow, and who knows that later, on account

of an operation, he will not be able to say his Office, is not bound to

anticipate; for no one is obliged to use a privilege. A person who is

able to hear Mass on Saturday, and who knows that all of Sunday must be

spent on the train, is not obliged to hear Mass on Saturday, though of

course this is the better thing to do.

474. The internal acts concerned in the fulfillment of a law are: (a)

those in the intellect, such as knowledge; (b) those in the will, such

as consent, motive.

475. Knowledge of what one is doing is sometimes necessary, sometimes

unnecessary for the fulfillment of a law.

(a) If the law is prohibitive, knowledge is not necessary, since

nothing more is required by the law than the omission of what is

forbidden. Example: He who ate no meat on a day of abstinence has

fulfilled the law, even though he was unconscious all day.

(b) If the law is preceptive of a payment to be made, knowledge is not

necessary, since the law requires nothing more than the effect of an

external act. Example: He who pays his taxes while intoxicated fulfills

his obligation, even though he does not know what he is doing.

is required, for it is supposed that the act will be exercised in a

human manner. Example: He who sleeps all during Mass on Sunday does

not fulfill his duty, for the law intends that one assist at Mass in a

human way (i.e., with consciousness of what is being done).

476. Fulfillment of a law is not morally good and meritorious, unless

it is voluntary (see 97 sqq.); but the legal obligation is sometimes

satisfied even by an unwilling fulfillment.

(a) When the law commands a payment to be made, one may will the

contrary of what is commanded and yet fulfill one’s obligation.

Example: He who pays his taxes unwillingly and under compulsion

satisfies the law, which requires not an act, but its effect.

(b) When the law forbids something, it is possible that one does not

will the omission commanded and yet fulfills one’s obligation. Example:

He who intends to eat meat on a day of abstinence which he thinks is

a meat day, but, being unable to find what he wants, omits the meat,

satisfies the law, which requires only that one omit what is forbidden

and have no will to violate the law.

the act willingly, since the law being for humans intends that

fulfillment be made in a human manner. Examples: He who is dragged

to church and forcibly detained there during Mass, does not satisfy

the law of sanctifying the Sunday, since force makes his assistance

at Mass involuntary (see 52). A child that goes to church only to

escape punishment satisfies its duty, if, in spite of reluctance, it

really intends to hear Mass, for fear does not necessarily make an act

involuntary (see 41 sqq.).

477. As to the intention required in fulfilling a law, it is to be

noted that one must have, at least implicitly, the intention of doing

what the law prescribes, in the case given in the third section (c) of

the preceding paragraph. Example: He who goes to church on Sunday while

Mass is being said with no other purpose than that of hearing the music

or of waiting for a friend, does not satisfy the Sunday duty, since he

does not at all intend to hear Mass.

478. The following kinds of intention, though to be recommended, are

not necessary for the fulfillment of a law.

(a) It is not necessary, as a rule, that one intend to satisfy one’s

obligation, for human lawgivers have not generally the power or the

intention to command acts that are purely internal (see 374, 426).

Examples: He who hears Mass on a holyday not intending to perform his

duty, as he does not know that it is a holyday, has satisfied the law.

He who says the rosary out of devotion and then remembers that he has

an obligation of saying it because of a promise made or of a penance

received, can regard the rosary said as a fulfillment of his obligation.

(b) It is not necessary that one intend that which the lawgiver had in

mind as the purpose of the law; for “the end of the law is not a part

of the law.” Example: A person who takes only one full meal during

Lent, observes the letter of the law; but he misses its spirit if he

eats or drinks greedily, daintily or copiously, in order to avoid the

mortification intended by the law.

479. If one intends to perform what a law prescribes, but at the

same time expressly intends not to satisfy, by that performance,

the obligation imposed, one’s act is sufficient or insufficient for

fulfillment according to the source from which the obligation arises.

(a) If the obligation arises from the will of the lawgiver, the act

is a sufficient fulfillment, since the human lawgiver, as said in

the previous paragraph, does not concern himself with what is purely

internal. Example: If a person hears Mass on Sunday out of devotion,

intending to hear another Mass in satisfaction of the Sunday duty, he

is not bound to hear a second Mass, as he has already done all that the

law requires.

(b) If the obligation arises from one’s own will, as in the case

of a promise or a vow, the act above described is not sufficient

fulfillment; for, as the obligation arose from the will, so also the

mode of fulfillment is to be determined by the will. Example: One

who has vowed to hear Mass, and who now while hearing Mass expressly

determines that not this but another Mass will be in satisfaction of

his vow, is bound by his vow to hear another Mass.

480. As to virtuous dispositions in fulfilling a law, it is to be

observed that, while a good lawgiver always wishes them, he does not

always require them as a duty of obedience. The virtuous dispositions

referred to are of two kinds: (a) habitual, that is, the permanent

spiritual condition of the soul, such as the state of grace, the

habit of charity, etc.; (b) actual, that is, the good manner in which

the commanded act is done, such as devout attention in hearing Mass,

heartfelt contrition in making confession, freedom from vain-glory in

fasting, etc.

481. Virtuous dispositions are or are not commanded according as that

which is prescribed is or is not a mixed, or a purely external act (see

above, 426).

(a) When a mixed act is commanded by law, the virtuous disposition that

the nature of the case calls for, but nothing further, is strictly

prescribed. Hence, the law of Easter Communion requires that Communion

be received in the state of grace, the law of yearly confession that

the penitent be truly contrite, the law of Sunday Mass that there be

sufficient attention to the Mass; but more perfect dispositions (such

as freedom from venial sin in the communicant, perfect contrition

in the penitent, the state of grace in him who hears Mass) are not

required for the fulfillment of the laws we are considering.

(b) When a purely external thing is commanded, the law does not require

internal dispositions, and hence one who performs what is required is

not obliged to repeat it on account of the imperfect way he obeyed.

Example: He who fasts while he is not in the state of grace is not

obliged to fast again to make good what was lacking in his previous

disposition.

482. Of course, what was said in the preceding paragraph has to do only

with single laws, and with what is strictly needed for the fulfillment

of the law. Hence: (a) he who sins because of the way in which he

fulfills one law, violates another law (e.g., one who is willingly,

though not entirely, distracted at Mass, obeys the church law of

assistance at Mass on Sunday, but he disobeys the divine law that he

worship God devoutly);

(b) he who has less devotion in obeying a law than he might have had,

does not deserve reprehension as a transgressor, but his conduct is

less praiseworthy.

483. Interpretation.--The meaning of interpretation and its various

species were explained above in 315 sqq.

484. As to the force of interpretation of church laws, the following

points must be noted:

(a) Authentic interpretation given in the form of law has the force

of law; if it is merely declarative of words of the law certain in

themselves, it does not need promulgation and is retroactive; if it is

supplementary, it needs promulgation and is not retroactive, since it

is a new law (Canon 17, Sec. 2);

(b) Authentic interpretation given in the form of judicial sentence or

of rescript in a particular matter has not the force of law; and it

obliges only the persons and affects only the things concerned (Canon

17, Sec. 3);

a legitimate custom (see above, 391 sqq.), for “custom is the best

interpreter of law”;

(d) Doctrinal interpretation has not the force of law, since it does

not proceed from the lawgiver. Its value depends on the reasons and the

authority by which it is supported. When all the doctors agree, their

interpretation is morally certain; when they disagree, the various

interpretations have more or less probability.

485. Rules for Doctrinal Interpretation.--(a) The words must be

understood in their proper sense according to text and context, unless

this be impossible; if doubtful, they must be judged according to

parallel places in the Code, the circumstances, reason of the law, and

the mind of the lawgiver (Canon 18).

(b) Things that are burdensome should be understood in their most

restricted sense (Canon 19), things that are favorable in their widest

sense. Thus, the censure pronounced against simony is understood in the

narrow sense of simony against the divine law; a privilege granted to

the clergy is understood in the wide sense as given to all the clergy.

is least burdensome to subjects.

(d) A particular law derogates from a general law; but a general law

does not derogate from a previous particular law, unless derogation

is expressly mentioned in the general law; for the particular law is

considered an exception to the general law (Canon 22).

486. Authentic interpretations of ecclesiastical laws are given by the

legislator, his successor, or one delegated by either (Canon 17, Sec.

1). (a) The Pope is the authentic interpreter of all ecclesiastical

laws. A special commission appointed by the Pope interprets the general

law of the Code. (b) The bishop is the authentic interpreter of

diocesan laws made by himself or by his predecessors.

334. The Subjects of the Mosaic Law.--(a) The Jewish people were bound