ALCEITA. - L. is a synonym for the correspondence of conduct to a type expressed in a rule.
I. LEGAL LICITUDE
When one speaks of l. in juridical language, one intends to indicate that a given act conforms to the positive law, whether it be commanding, prohibiting, or permitting, or that it occurs in the absence of a precept or prohibition in the juridical sphere.Bearing in mind that a juridical act is an act of free will, whether of private individuals, the State, or lesser public entities, directed toward producing repercussions within the realm of social relations regulated by positive juridical order and thus toward producing juridical effects, one may affirm that l. is a concept that indicates the conformity of an act to the positive norm, whereby the act represents the unfolding of the initial juridical situation; if, instead, the act pursues a deviation from the initial juridical situation, i.e., it is contrary to the positive norm, the positive order disapproves of it and represses II. In the first case, the juridical act is licit; in the second, illicit.
One may also affirm that the positive juridical order, as the structure of a social organization—inasmuch as it prescribes duties and attributes rights, delimiting the sphere of free action of individuals and collectivities—is legality: freedom subject to the norm. No one is permitted to violate this legality, whether in the sense that one may invade another’s sphere of freedom or obstruct its practical realization without incurring punishment, or in the sense that one may take the law into one’s own hands, even when in the right. However, exceptionally, the individual is granted the power of self-protection, e.g., within the Italian positive juridical order, the right of retention (arts. 1151, 535, 1006, 1011, 975, 2994 para. 1, 2794 cpv., 2761, 2040, 748 para. 4, Civil Code), unilateral withdrawal (arts. 1373 Civil Code), forfeiture of a deposit (arts. 1385 Civil Code), suspension of performance (arts. 1461 Civil Code), formal notice to perform (art. 1454 Civil Code), to refrain from acting (art. 896 Civil Code), and so forth.
II. LEGAL LICITUDE AND MORAL LICITUDE
Not every legally licit act is also morally licit. To grasp this, one must consider the relationship between morality and positive law. The latter concerns only actions directed toward another within the sphere of social life and in relation to the common good, and it considers them not from the perspective of the subject but of the object, i.e., formally toward others. This contrasts with morality, which, even when concerned with what is owed to others, always considers such duty in terms of its intrasubjective value, namely, in relation to one’s own conscience and to God. The concept of juridical obligation is therefore different from that of moral obligation, and so too is the concept of the absence of juridical obligation—and hence of legal licitude—different from that of the absence of moral obligation—and hence of moral licitude. Juridical obligation directly governs external conduct, rendering the subject directly answerable to society (in the external forum). Moral obligation goes further and formally binds the conscience, engaging it directly before God (in the internal forum). It therefore often happens that what is legally licit is not morally licit, because although the subject has no juridical obligation for which they must answer before the ecclesiastical or civil society, they do have a moral obligation for which they must answer before their own conscience and before God. This does not imply a contradiction between the two categories but rather a simple distinction, inasmuch as legal licitude signifies the absence of constraint or impediment to act solely under the aspect of law, whereas moral licitude implies conformity to the norm also in other respects that law does not consider. In conclusion: for an action to be morally licit, it is not enough that it not violate law and justice; it must also not violate any norm of moral order (natural law, divine-positive law, and ecclesiastical law, in cases of civil legal licitude). Conversely, an action that is morally illicit is not thereby contrary to law and justice.All of this is naturally incomprehensible to other conceptions that either tend to confuse morality with law or to separate them (Thomasius, Kant) or even to oppose them (Fichte). Yes, the immediate and proper end of law is different, but not contrary to the ethical order, and the ultimate convergence of law and morality is achieved by virtue of the same principle upon which law rests, for since it derives from natural law and thus from the ethical order, it cannot but objectively tend, as to an ultimate end, toward the very end to which the ethical order is directed. From what has been expounded, it follows further that every obligation arising for man from the positive juridical order must take account of the divine law, which is the necessary basis of moral obligation and thus the foundation of the positive juridical order itself.
Therefore, for the State to be able to give rise to a true obligation of conscience, it is necessary that the content of its laws conform to the divine laws, both natural and positive, so as not to bind men to perform an action contrary to the laws of God.
When all of this has been borne in mind, one may speak of a licit act in an absolute sense, both in the juridical and in the ethical order. And this is a matter of objective licitude.
Subjectively, licitude concerns what the conscience (the norm of subjective morality) commands, prohibits, or permits with certainty. If there is doubt—practical doubt—regarding the licitude of an action, the action is no longer licit. The doubt must first be resolved according to the norms laid down by moral systems (v. COSCIENZA; SISTEMI MORALI).