Law

LAW. - In general it indicates the "constant form" that the becoming of both physical phenomena (physical law) and human actions (moral and juridical law) must assume; in the first case law constitutes the sphere of the regularity of nature, in the second it founds and realizes the moral and juridical order of human life. Law corresponds, in the dynamic order of beings, to the proper essence of things in their absolute structure and realizes the tendency inherent in every nature to tend toward its own perfection: the content of law therefore, and the manner of its realization, depends on the respective essences.

I. GENERAL CONCEPTS AND CLASSIFICATIONS.

Law in the strict sense is opposed to freedom and does not exist in the sphere of man's free actions, but only to stimulate and regulate the exercise of individual freedom in the concert of social life; in this sense law is distinguished from "nature," which is an intrinsic principle that necessitates action in a constant and uniform manner, as St. Thomas teaches: "Actus irrationalium creaturarum, prout ad speciem pertinent, diriguntur a Deo quadam naturali inclinatione, quae naturam speciei consequitur" (C. Gent., III, 114). In its common essence, therefore, law is defined as: "Regula et mensura actuum secundum quam inducitur aliqua ad agendum vel ab agendo retrahitur" (Sum. Theol., 1a-2ae, q. 90, a. 1). Law is not properly an act of the will, but of reason, and precisely of the practical intellect, whose fundamental act it forms: "Secundum hoc differunt intellectus speculativus et practicus (quia) intellectus speculativus (id) quod apprehendit non ordinat ad opus sed ad solam veritatis considerationem; practicus vero intellectus dicitur qui hoc quod apprehendit ordinat ad opus» (ibid., 1a, q. 79, a. 11). Since law directly invests the sphere of external activity, it entails on the one hand that man, who is social by nature, be ordered to the common good of all; for this reason, that is, so that this common good may be guaranteed, the law must be promulgated, that is, made a matter of public knowledge to the members of society by the authority that presides over that society itself. Thus we have the complete definition of law: «quadam ordinatio rationis ad bonum commune et ab eo qui curam communitatis habet promulgata» (ibid., 1a-2ae, q. 90, a. 4). The foundation of law follows the proper structure of reason, which must regulate the course of human actions. Therefore, since human reason is finite and created by God, above and as the foundation of every human law there is the divine or eternal law as the first principle and rule of the divine government of all things: «Ratio gubernationis rerum in Deo sicut in principe universatis existens» (ibid., 1ᵃ-2ᵃᶜ, q. 91, a. 1). From the eternal law derives the ordering of all things in the manner befitting their respective natures, so that through their own actions they tend toward their end.

But natural law takes on a special meaning in man, inasmuch as, being endowed with freedom, he can dispose of himself and of other things in relation to himself and to others: natural law therefore has in man not merely or properly an "executive function" as in other beings, but man's own practical reason becomes aware of the value of acts (quid sit bonum et quid sit malum) by virtue of its spiritual light. This light is created by God and therefore derived from the eternal law, whereby the natural law «nihil aliud est quam participatio legis aeternae in rationali creatura» (ibid., 1ᵃ-2ᵃᶜ, q. 91, a. 2). In effect this "participation" of man's practical reason in the eternal law consists — analogously to what occurs in theoretical reason with the immediate knowledge of the first speculative principles — in the immediate knowledge of the first moral principles that must regulate human actions in general; it is these first principles of morality in man that St. Thomas calls synderesis or intellectus principiorum, which form: «lex intellectus nostri in quantum est habitus continens praecepta legis naturalis quae sunt prima principia humanorum actuum» (ibid., 1ᵃ-2ᵃᶜ, q. 94, a. 4 ad 2; cf. ibid., q. 91, a. 3 ad 1 and 1ᵃ, q. 79, a. 12). Synderesis (or syntheresis) constitutes the deepest core of man's moral conscience, from which he proceeds to determine in concrete terms, in singular actions or objects, their goodness or malice, and therefore it is almost one with moral conscience itself (ibid., 1ᵃ, q. 79, a. 13). From natural law derives positive human law. Just as through the concrete application of the first speculative principles to things the various sciences of nature are formed, so practical reason — starting from the first moral principles of synderesis — proceeds to formulate the particular laws of human action (ibid., 1ᵃ-2ᵃᶜ, q. 91, a. 3; q. 100, a. 5 ad 4). In this positive human law St. Thomas distinguishes a twofold category of precepts: the first, which embraces the "conclusions" that necessarily derive from the first moral principles, as when from the supreme principle "one must never do harm to anyone" it is concluded that "it is forbidden to kill anyone." The second class concerns rather the more concrete "determinations" of natural law, as when from the principle of natural law that "the guilty must be punished" one proceeds to determine in concrete terms the nature and manner of punishment for the various crimes; the first class belongs in a certain sense still to natural law, while the second constitutes properly human law and has value solely by positive disposition (ibid., 1ᵃ-2ᵃᶜ, q. 94, a. 12). But just as natural law has value from its conformity with the eternal law, so positive human law draws its efficacy from its subjection to the divine law and from its conformity with the natural law: therefore unjust laws do not oblige: certainly those that violate the rights of God do not oblige; laws that violate the rights of individuals do not oblige in themselves in the forum of conscience, unless scandal or disturbance of the public order should arise from them (ibid., 1ᵃ-2ᵃᶜ, q. 96, a. 4). In the economy of Divine Providence, positive divine law was bestowed directly by God upon man, through Moses and the prophets in the Old Testament and through Jesus Christ, the incarnate Word, in the New Testament: the former, in what was essential to it, that is, the precepts of the Decalogue, was preserved and perfected by Christ, but in what was strictly "figurative" of the coming Messiah, such as the ceremonies and sacrificial rites, it was abolished at his coming (ibid., 1ᵃ-2ᵃᶜ, q. 98, a. 2). There exists finally positive ecclesiastical law, which belongs to the Church as a perfect society.

The problem of moral law is present at the very dawn of human thought: it can be said that ancient Greek thought is pervaded by the antithesis of νόμος and φύσις, which generally indicate what depends on man and what depends on the necessity of nature. The necessity of physis had its expression in μοῖρα, fate, to which in the Homeric poems not only the heroes but the very gods are subject: the executors and guardians of μοῖρα are the Erinyes (Iliad, XXI, 410, 414; cf. XIX, 404, 418). The Odyssey shows an attempt at liberation from μοῖρα through θέμις, which corresponds to the personal courage of the heroes. Hesiod's intent in his theogony is to describe the becoming of the cosmic order (φύσις), but at the same time also to indicate the execution of a plan that culminates in the triumph of order over the initial disorder or chaos (θέμις or νόμος); the elaborate Orphic theogonies, which would later be taken up by late Neoplatonism, tend toward this end as well. The Sophists are all engaged with the contested primacy between φύσις and νόμος, and some side with nature (Hippias, Antiphon, Prodicus), while others instead side with law, such as Archelaus, according to whom justice and baseness are not the effect of nature but of human act: τὸ δίκαιον εἶναι καὶ τὸ αἰσχρόν οὐ φύσει, ἀλλὰ νόμῳ (Diels-Kranz, Die Fragmente der Vorsokratiker, Berlin 1935, Fr. 60 A 1; vol. II, p. 45). But what if the tyrant, like Creon, takes advantage of the law against the innocent individual and seeks to impose the arbitrariness of his ὕβρις? Then there is Sophocles, who puts into the mouth of the innocent Antigone the appeal to the "unwritten laws" (ἄγραπτα νόμιναι), whose life is not of today or yesterday but of all times (Antig. 452-457). The essence of Greek tragedy lies in this conflict of φύσις-μοῖρα and νόμος. It was the merit of Socrates (and then of Plato and Aristotle) to have synthesized the two contrasting elements by showing that νόμος, when it is recognized and accepted, belongs to the very φύσις of fully developed man: this especially in polemic against the absolute relativism of Protagoras, which resolved itself into utilitarianism and hedonism (cf. Xenophon, Mem., III, 8, 2-3; Plato, Protagoras, 327 bc-328 ab, 334 a-c, 351 b 357 c. Also Theaet. 151 e and 152, where the famous saying is found: πάντων χρημάτων μέτρον ἄνθρωπον εἶναι). The relationship between φύσις and νόμος tends to loosen in Democritus and especially in Epicurus, according to whom the gods take no care at all of this world; whereas for the Stoics the world is a divine work (κόσμος) and divinely ordered; it goes back to the Stoics to distinguish things that depend on us (τὰ ἐφ' ἡμῖν) and those that escape our initiative or our control and which we must endure (ἀνέχου καὶ ἀπέχου; cf. Epict., Fr. 10, from which comes ἀπαραξία). In medieval Jewish, Christian and Islamic philosophy, the problem of law is developed in its three fields — religious, ethical and political — in conformity with the orientation proper to each religion: Christian philosophy reaches its apex from the theoretical point of view with St. Thomas, whose fundamental principles have been indicated above. Further developments occurred in the 16th century with F. de Vitoria and F. Suárez, to whom notable treatises on the ius gentium are owed. In modern thought the problem of law follows the fate of the problem of all knowledge in general and fragments into as many problems as there are new sciences that come to be established: with Kepler and Galileo the new laws of astronomy arise, with Descartes the new laws of physics; closer to our own time, with the discovery of the microscope, we have the new laws of biology; with the observation of human facts, the new laws of psychology, history, sociology, economics, politics — that is, in the entire sector of the "sciences of the spirit" (Geisteswissenschaften). The meaning and value of laws depends on the orientation proper to individual systems (empiricism, phenomenism, idealism, realism, rationalism, etc.); all of this refers back to the general problem of the value of "science" (v. DETERMINISMO). As a return to the Greek conception of the political νόμος that absorbs and dominates the destiny of individuals, Hegel may be indicated, for whom the complete expression of the "free will" and therefore of human nature as such is law, that is, the external and political organization of the State (cf. Vorlesungen über d. Philosophie des Rechts, §§ 29-30). The problem of law is therefore directly a function of the problem of reason in its relationship with the world and with other men, and of its foundation in God.

Cornelio Fabro

II. ECCLESIASTICAL LAW.

I. NOTION

Like the jurisdiction of which it is a part (v. GIURISDIZIONE), the legislative power also derives to the Church from her very nature as a perfect society. For the attainment of her supernatural end, it is in fact necessary that the Church have the power to designate and to impose the means suited to pursuing it; and it is precisely in this that the legislative power consists.

Ecclesiastical law is subdivided: with respect to extension in space, into universal and particular; with regard to those to whom it is addressed, into general and singular; with regard to application, into common and special; with respect to its object, into affirmative or commanding and negative or prohibiting, and, according to some, also permitting; with respect to the obligation it induces, into merely moral (which obliges in conscience but without any sanction in the external forum), into moral and penal together, that is, mixed, also called merely penal (which obliges in conscience to do or omit something, and to undergo a penalty in case of transgression), and merely penal (which does not oblige in conscience to do or omit what the law commands or forbids, but obliges in conscience to undergo a penalty, if this is inflicted for the transgression); with respect to the manner of obliging, into personal (if it obliges persons directly, independently of territory), and territorial or local (when its efficacy is limited to the territory); with respect to its effect, into merely prohibiting (when it renders the act illicit), invalidating (when it renders the act not only illicit but also invalid), and incapacitating (when it renders the person incapable of a determinate act; in its effect, the incapacitating law is the same as the invalidating one).

II. AUTHOR

According to the very notion of law, the author or source of it is the one who has the care of the community and can lay down norms for the common good.

The legislative power is therefore part of the power of jurisdiction understood in its broadest and most complete sense of public power in the external forum, and the legislator is the one who holds such power in its supreme expression, because the other functions that can be included within jurisdiction, namely the executive and judicial power, are at the service of the law; they presuppose its existence, and have in the law their limit. The power to make law therefore belongs to the supreme head of the Church, and, in a derived manner and dependent on him, to the superiors of lower communities who are invested with such power for a determined part of territory or of subjects. Universal laws, that is, binding on the whole Church, can therefore be issued only by the supreme pontiff (can. 218) and by the ecumenical council (can. 228 § 1), who have no limits to their power, except divine law, natural and positive. Both the pope and the ecumenical council can delegate their universal legislative power, but they cannot renounce it and always retain the power to revoke or derogate from the laws of their delegates (v. FONTI DEL DIRITTO).

With such power are endowed, within the limits established by the motu proprio Cum iuris canonici of 15 Sept. 1917, the Pontifical Commission for the Interpretation of the CIC and, in exceptional cases, the Roman Congregations. The Sacred Congregations of the Holy Office, for the Eastern Church, and of Rites, insofar as their competence concerns a matter that is outside the CIC (cann. 6 no. 6, 1 and 2), exercise such power in an ordinary manner. Particular laws can be issued by the Roman pontiff and by the ecumenical council; by the Roman Congregations, by particular councils (plenary and provincial) for the respective territory, but with the approval of the Sacred Congregation of the Council (cann. 290-291); by residential bishops both in synod and outside synod (cann. 362 and 335) for all non-exempt diocesans and within the limits of the common law; by prelates equated to bishops within the boundaries of their jurisdiction, namely: by the coadjutor of an incapacitated bishop (can. 351 § 2), by vicars and apostolic prefects (can. 294 § 1), by permanent apostolic administrators (can. 315), by abbots and prelates nullius (can. 323); moreover, during the vacancy of the See, by the cathedral chapter for eight days after the notice of the vacancy itself (can. 431 § 2) and, thereafter, by the capitular vicar (can. 432 § 1), while nevertheless holding firm the principle: sede vacante nihil innovetur (can. 436). In exempt clerical religious orders, the legislative power is generally reserved to the general chapter; it is not, however, excluded that the constitutions extend it to others. Legates or representatives of the Roman pontiff, whether a latere or with permanent mandate (nuncios, internuncios, apostolic delegates), do not have, by common law, legislative power. The same is to be said of the patriarchs of the Latin Church, primates, metropolitans (can. 271 ff.) and vicars general.

III. OBJECT

The law, by its very nature, must be reasonable, and therefore honest and just with respect to the matter it concerns.

The object of ecclesiastical law is in general everything that is necessary for the end of the Church, in particular faith, morals, and discipline. It belongs to the Church, in fact, to propose, also by means of its laws, the revealed truths that the faithful are bound to profess (cf., for example, cann. 218, 731 ff., 937 ff.; 948, 1012 ff., 1322 ff., etc.). Since, moreover, it is necessary that the faithful be directed to their supernatural end also by norms that guide their actions, the Church has the power to issue also laws by which is determined and commanded what must be done or omitted by individuals for their salvation (cf., for example, cann. 1037 ff., 1316 ff., 1399, etc.). Finally, since individual subjects are members of the social body of the Church, the latter can also issue disciplinary laws, by which it safeguards the social order and promotes the common spiritual good.

By means of its laws the Church sometimes commands or forbids what was already imposed or forbidden by divine law, natural or positive, sometimes adding a penal sanction or an invalidating clause for transgressors. In other cases the ecclesiastical law is a determination or a conclusion of the same divine law, natural or positive, or the command of what that same law merely counsels. In still other cases, finally, the law enjoins a wholly new precept, rendered necessary or useful by changed circumstances, but not contained at all in divine law.

Besides being just and honest, the object of the law must be physically and morally possible.

For acts already performed, can. 10 of the CIC lays down the principle of non-retroactivity, so that a law has no retroactive effect unless this is stated explicitly in it (v. DIRITTO QUESITO).

IV. PROMULGATION

In order for the law to be observed, it is required that it be brought to the knowledge of those to whom it is addressed.

At present the promulgation of laws by the Holy See takes place by publication in the AAS, unless, in particular cases, provision is made otherwise (cf. can. 9 CIC).

V. VACATIO

Before the CIC there was no general norm determining the vacatio of ecclesiastical laws. Some, on the basis of Justinian's Nov. 66, required two months. But most, and shortly before the CIC almost all, held that ecclesiastical laws were binding as soon as promulgated, while admitting that for some time ignorance could be presumed, which excuses from penalty; outside Rome this period was extended even to two months.

The CIC establishes that the laws of the Holy See enter into force "only three months after the day affixed to the number of the Acta, unless, by the nature of the matter, they bind immediately, or unless in the law itself a shorter or longer vacatio has been specially and expressly established" (can. 9 § 2). The three months of vacatio are therefore to be counted not from the date of the law, but from the date of the issue of the AAS in which it is published. It must be understood that a law binds immediately by its very nature when it is a declaration of divine law, natural or positive, a dogmatic law, or one destined to preserve the integrity of faith or morals (cf. also can. 17 § 2).

For legislators inferior to the Holy See, the following norms are in force: a plenary or provincial council must designate the time at which its decrees begin to bind (cann. 291 and 304 § 2); the laws of bishops bind immediately after promulgation, unless it is established otherwise (can. 335 § 2); the constitutions of a diocesan synod, if they are promulgated in the synod itself, bind immediately, unless a vacatio is established (can. 362).

VI. SUBJECT

Ecclesiastical law cannot bind anyone except the members or subjects of the Church. Since one becomes a subject of the Church through Baptism, which imprints the character, ecclesiastical laws bind only those who have received it. Even unbelievers, however, are subject to God, the supreme legislator, and therefore they too are subject to divine law, natural and positive, as it is proposed and declared by the Church, its infallible interpreter. They are not, on the other hand, bound by those divine positive laws (for example, those that require the reception of the other Sacraments) which presuppose Baptism, until they have received it.

By the same divine positive law, however, they are obliged to receive Baptism after having embraced the faith.

Apostates, heretics, schismatics and excommunicates who, after Baptism, have renounced the faith and union with the Church, remain, because of the indelible character of Baptism, always subjects of the Church and bound by its laws (can. 87). Material heretics and schismatics, who were born and educated in heresy and schism (can. 1099 § 2), are not bound to observe the form in the celebration of Matrimony (can. 1099 § 2); those, moreover, who have received Baptism outside the Catholic Church and have not converted to it are exempt (can. 1070 § 1) from the impediment of disparity of cult. Some authors, before and after the CIC, hold furthermore that material non-Catholics are not bound by the laws that tend directly or primarily to personal sanctification (such as those of abstinence and fasting, of observance of the precept of a holy day, etc.), presuming that the Church does not intend to bind them, since it would offer an occasion of sin given the certainty of transgression. The majority of writers, however, is of the contrary opinion, because no indication shows the Church's will to grant such a general exemption, which on the contrary must be considered excluded by the particular and express exemptions that have been indicated. To the principles established in cann. 12 and 87 the CIC does not make this exception. On the other hand, these are principles of extreme importance for ecclesiastical discipline. If material heretics or schismatics do not observe these laws because they are ignorant of them, or because they cannot, there is the case of ignorance or of impossibility, that is, of a reason that excuses from their fulfillment, and therefore removes guilt.

While by divine positive law unbelievers are not subject to ecclesiastical laws, by divine natural law all those who do not have a sufficient use of reason are not subject to them (can. 12), that is, infants and habitual madmen, whether they were born such or became such later. Habitual madmen are presumed to be deprived of the use of reason even in their lucid intervals. If, however, the opposite is proved, they are subject to the law, both in the internal and in the external forum. Those who are temporarily deprived of the use of reason (through sleep, fever, etc.) remain radically subject to the law, but can be excused from its observance.

By positive ecclesiastical law, baptized persons who have not completed their seventh year are not bound by the laws of the Church, even if they have the use of reason (can. 12). Before the CIC there existed no positive norm on this point, and the principle held according to which laws begin to bind from the moment one acquires the use of reason. This entailed a judgment of fact not always easy to make. Until the 18th century it was fairly common opinion that before the age of seven the use of reason was not to be presumed, but was presumed after; that nevertheless the law bound when in fact the use of reason had been reached, even if this happened before the age of seven. St. Alphonsus held the contrary opinion to be probable, which in the 19th century became the most general and which rested above all on the following argument: law concerns common cases, not extraordinary ones, and ordinarily the use of reason is not had before the age of seven. The CIC has sanctioned this opinion. Even before the age of seven, children who have the use of reason can be subject to the law, provided that the law says so expressly (can. 12). Such express mention is found for Baptism (can. 745 § 2, 2°), for an adequate disposition and instruction for Confirmation if it is received before the age of seven (cann. 786 and 788; decree Spiritus Sancti of 14 Sept. 1946: AAS, 38 [1946], p. 353, n. 5), for annual Confession (can. 906), for paschal Communion (can. 859 § 1), for Communion and Extreme Unction in danger of death (cann. 854 § 2, 940). Once the seventh year is completed, the child is bound by all ecclesiastical laws, unless he is expressly exempt from them. He is not bound to fasting (can. 1254 § 2), and is excused from latae sententiae penalties (can. 2230).

The legislator is subject to the laws issued by a legislative college of which he is a member (for example, the bishop with respect to the provincial council), because the authority of the college is superior to his (cf. cann. 291 § 2, 501-502). The Roman pontiff is excepted with respect to the ecumenical council, because of this he is not only a member but also the head. The singular legislator is not subject to the coercive force of the laws that he issues by his own authority, and therefore is exempt from penalties both ferendae and latae sententiae. However, since laws are directed to the common good, to which the legislator too must cooperate, he also is subject, by natural law, to the directive force of the law.

In particular: a universal law binds all those who appear to be its addressees, that is, those for whom it has been promulgated (can. 13 § 1). A law promulgated for a particular territory binds when these three conditions occur together: a) that one be subject to it (and therefore not in the case of exemption); b) that one have domicile or quasi-domicile in that territory; c) that one be in fact present in it (can. 13 § 2): by leaving the territory, the subject withdraws from its obligation. Absent persons, that is, those who are outside their own territory, are in fact not bound by the laws of that territory as long as the absence lasts (can. 14 § 1, n. 1), for whatever reason they have left it, including the will to evade the law. The reason is that, in order to achieve the purpose of the law, the legislator has deemed it sufficient that it be observed within the scope of the particular territory. Absent persons are, however, bound by the laws of their territory when these are personal, or when the transgression of them harms within that same territory (for example, the law of residence [can. 465], of assisting at the provincial council or the synod, etc.).

In case of doubt the law is presumed to be territorial (can. 8 § 2). Outsiders are not bound by the laws of the territory in which they find themselves, unless these are laws that provide for public order or determine the form of acts (can. 14 § 1 n. 2). In determining which laws provide for public order, authors are not in agreement. It may, however, be held that such are all those laws whose observance is necessary for the existence of society and for the right ordering of social relations, so that social life is not disturbed. Such are the laws that determine the exercise of public power or public offices, that directly protect the external order (e.g., cann. 1262-1263, 1295), that concern the ownership of things of the place, and those whose violation would give rise to scandal. Outsiders also incur the penalties attached to laws that concern public order (can. 2226 § 1); as for penalties that are not attached to those same laws, authors are not in agreement. Reserved sins and censures, given that the reservation is directed to the protection of public order, must be considered such also for outsiders. For the defense of public order, Ordinaries may also make special laws for outsiders. These, finally, are bound by universal laws, even if (by indult, privilege, concordat, custom, etc.) these have no force in their territory; they are not bound, however, if the law has ceased in the place in which they find themselves (can. 14 § 1, n. 3). Vagrants, that is, those who have neither domicile nor quasi-domicile in any place, are bound by the universal and particular laws in force in the place in which they find themselves (can. 14 § 2); they are not bound, however, by universal laws that do not oblige in that place.

V. also IGNORANZA; INTERPRETAZIONE.

VII. CESSATION

A law properly ceases when it loses, in a definitive and complete manner, that is, for the whole community, its binding force. This can happen through a cause intrinsic to the law itself, when its purpose fails; or also through an extrinsic cause, that is, through the will of the legislator who abrogates it, or through desuetude or contrary custom. By reason of its object, a law can cease totally or partially, according as it loses its binding force over its entire matter, or over only a part of it.

The purpose of a law fails when the law, because of changed circumstances, becomes morally impossible, harmful, unjust, or even simply useless. If the purpose of the law fails completely and for the whole community or for the greater part of it, the law ceases. If the purpose does not fail completely, neither does the law cease; when however, in particular cases, the law becomes morally impossible, unjust or harmful, it ceases to bind in those particular cases; it continues instead to bind even in particular cases in which it becomes simply useless, because it is ordered to the common good. A law that has ceased does not revive, even if the circumstances that determined it return; for it to arise again it must be promulgated anew.

In accordance with the principle set forth, the CIC establishes that laws enacted as a defense against a general danger bind even in the particular case in which this danger does not exist (can. 21). Such laws are in fact directed not at removing or avoiding the existing harm, but at the possibility of harm, and at avoiding this possibility not for the individual, but for the community (this happens, for example, with prohibited books). They too, however, would cease if in the particular case they became morally impossible, unreasonable or harmful.

The revocation of a law by the legislator is always valid; for it to be licit, a cause founded on the good of the community is required. If the revocation is made by a subordinate, by concession of the legislator, a just cause is necessary for its very validity.

Revocation can be direct or indirect, according as the will of the legislator is directed at the revocation itself or at a fact that necessarily determines it. The CIC establishes that a later law abrogates an earlier one if it expressly revokes it, or is directly contrary to it, in such a way as to be incompatible with it, or entirely reorganizes its matter (can. 22).

Nevertheless a general law does not derogate from particular laws or statutes, unless it expressly says so. It remains firm, however, in accordance with can. 6 n. 1, that laws, even particular ones, contrary to the CIC are abrogated, unless it is established otherwise in the CIC itself (can. 22). As has been said for general laws, a particular law also abrogates a particular law of the same legislator if this is expressly stated, or if it is incompatible with it, or if it reorganizes its matter. A particular law cannot derogate from a particular law of a higher legislator (for example, the law of a bishop cannot derogate from that of a plenary or provincial council, can. 291 § 2). A particular law can instead derogate from an even universal law, if it is issued by one who has the power to derogate even from the universal law. Likewise the particular law of a higher legislator (for example, the Roman pontiff) derogates, even without mention, from the particular law of a subordinate (for example, the bishop).

In doubt, the revocation of a law is not presumed, but later laws must be, as far as possible, reconciled with earlier ones (can. 23). Nevertheless the correction of the law must be admitted, beyond the cases in which it is proved, also in the cases in which otherwise there would be an absurdity. Moreover, once the correction is proved as to the principal matter, it must be admitted also as to the accessory. Revocation or correction is to be understood in an extensive sense, when through it one returns to the common law in force.

Dino Staffa

VIII. DISPENSATION

The notion of dispensation is intimately connected with that of positive law, since a dispensation is a derogation from the law in a particular case, made for a justified reason by the legislator or by one of his delegates. No man can derogate from the natural or divine law, because it lies beyond his competence. It is clear, therefore, that if it is not a matter of positive human law, no one can dispense from it.

Commonly laws take into account the possible circumstances that could impede their execution, but they cannot contemplate all cases and provide for those particular ones in which, if the law were observed, harm would come to individuals. To prevent this private harm for reasonable motives is the purpose of the legislator when he admits the possibility of dispensing from the legislative norm, that is, of ensuring that in the particular case the law has no force. But if the derogation from the law, granted in favor of a private individual, could harm others or the community itself, it would lack juridical foundation, because in case of conflict the private good must yield to the common good. In a broad sense, moreover, the exceptions admitted by laws under determined conditions may also be called dispensations, which therefore do not require the intervention of the legislator, as, for example, the dispensation from the eucharistic fast for the sick after a month of confinement to bed.

The authority that has established ecclesiastical laws, or a higher authority, can dispense from them (can. 80): therefore the pope or the Holy See for the general laws of the Church however emanated by it or by lower legislators, the local Ordinary for diocesan ones (can. 82), the Ordinaries of the circumscription for the laws of provincial or regional councils (can. 82), religious Ordinaries for those determined by the constitutions. It is a constant tradition that the pope can dispense from certain bonds that are contracted by a human act of the will, although they are obligatory by divine right, such as a vow, an oath, and a ratified but non-consummated marriage. In granting a dispensation, each authority may delegate its subordinates for this purpose either permanently or in individual cases.

Every Ordinary, moreover, can grant dispensations that in themselves would fall within the competence of the Holy See, either by disposition of law or by special faculty. The CIC indicates cases of faculty ex iure, for example, for the interstices and for certain irregularities in Sacred Ordination, for the publications and for certain matrimonial impediments, for the law of fasting and abstinence, for vows and oaths, for determined penalties. But in a generic way the law attributes to Ordinaries such a grant for the general ecclesiastical laws, from which the Holy See is accustomed to dispense: a) when recourse to the Holy See is difficult and at the same time there is danger of grave harm because of the delay (can. 81); b) in case of doubt of fact (can. 15). The grant of special faculties is usually given to those Ordinaries for whom recourse in individual cases would prove burdensome or difficult, either because of the distance from Rome or because of the multiplicity or urgency of the cases that arise (v. QUINQUENNALI FACOLTÀ). Also nuncios and apostolic delegates enjoy special faculties to dispense (cf. can. 267 § 1 n. 3 and § 2). Parish priests cannot dispense from any law, except (cf. can. 83) in the case of an express grant made either by the law (for example, for the obligations relating to holy days of obligation, to abstinence, and to fasting: can. 1245 § 1), or by the competent authority.

From the general ecclesiastical laws that are preceptive and not disqualifying, that is, from those that oblige all the faithful without distinction to something after the age of seven, physical or moral impossibility excuses of itself without any dispensation being needed; but in order to be exempted from the other laws, the intervention of the competent authority and the existence of a just cause are necessary.

Certainly the legislator could, in particular cases, derogate from the laws emanated by him, even without any motive, but this would harm his dignity and his prestige and could also frustrate the purpose of the law itself. It is therefore necessary that the dispensation be justified by a cause, which induces the legislator himself to the requested derogation.

The causes must be proportionate to the importance of the law from which the derogation is sought; otherwise the dispensation granted by an authority lower than the author of the law is null. The causes that induce the authority to grant the dispensation and that are indicated in the document of grant are called motive or final causes; the others, less grave, that are added, are called impulsive. The causes must be true at least at the moment in which the dispensation becomes executory; but if the causes indicated in the rescript are different, it is sufficient and necessary for the validity of the grant that at least one of those motive causes be true. For matrimonial impediments of minor degree, however, the dispensation is always valid even if the cause is false (can. 1054). Sometimes, moreover, even if the individual causes were not sufficient by themselves, considered as a whole they can acquire the value of a motive cause. In doubt about their sufficiency, one can validly and licitly grant the dispensation (can. 84 § 2).

The request for a dispensation must be made to the competent authority by the person concerned, clearly indicating the object and the causes. It is not excluded that one may request a dispensation without the knowledge of the person concerned.

The statement must correspond to objective truth, if one does not wish to expose the grant to nullity.

When the petition is made to the Holy See, it must reach its destination through the proper Ordinary. If the latter is favorable to the grant, he accompanies it with his commendatory letter (unless he judges it opportune or is obliged to make the request himself in favor of the person concerned); in the contrary case he expresses his negative opinion with his reasons. All petitions made to the Holy See are to be addressed to the Holy Father, but they must be transmitted to the ecclesiastical dicastery competent in the matter, which, all things considered, will take the decision.

The grant of a dispensation can be made in a definitive manner, that is, as it is said, in forma gratiosa, having force from the very moment in which the grantor intended to give the dispensation. But ordinarily it is made in forma commissoria, that is, the granting authority gives the task of rendering the grant executory either to the requesting Ordinary or to another determined person. For all this subject, v. also RESCRITTO.

It can sometimes happen that, when the Ordinary has requested a dispensation that the Holy See is accustomed to grant and the response is slow in arriving, there is or supervenes a grave and urgent motive that counsels immediate grant. Then the Ordinary may himself grant the requested dispensation, with the obligation of notifying the authority to which he had turned.

The grant of a dispensation and its execution are to be made in writing (not, however, under penalty of nullity), so that they can be proved in the external forum.

Every dispensation has effect as soon as it becomes executory. But, depending on the laws from which it is obtained, it may or may not have a duration in time. Thus: a dispensation of age for Sacred Ordination, once obtained and used, ceases to produce any further effect; whereas a dispensation from the eucharistic fast lasts for the entire time established in the grant. Therefore the cessation of a dispensation can take place only when it has, as it is said, a successive extent, that is, when one can use it with a repetition of acts.

One can also renounce the dispensation after having obtained it and not use it at all or only for a certain time, if it has a successive extent. But, just as the dispensation is null if it lacks the necessary cause, so, once the motive cause has totally ceased, its force also ceases (can. 86).

The dispensation can moreover cease through an express revocation made by the grantor and communicated to the person concerned.

Among the dispensations from ecclesiastical l[aws], those from matrimonial impediments occupy a special place, both for their frequency and for their social importance. The norms already stated apply to these as well, but they have something particular that concerns them (v. IMPEDIMENTO).

In the granting of dispensations of any kind, a tax is imposed having the purpose of a deterrent, of an inhibitory penalty and at the same time of homage to the Holy See for the favor received. But while this tax, varying according to the kind of dispensation or its importance, is the same for all, for matrimonial dispensations a system of traditional taxation is followed. A distinction is thus made between rich and poor, that is, a distinction is made between those who possess and earn up to a determined limit and those who exceed it. For the poor a minimum tax is established, varying with the impediment (the destitute pay only the expenses); for the rich, on the other hand, the componenda takes place. This is a sum established case by case by the Holy See following the indication of the personal wealth of the spouses and their incomes. The percentage varies here too with the diversity and gravity of the impediments. In ancient times, when a certain sum was exceeded, the dispensation was granted using the form of the brief, but later the rescript was used for all. Besides the entries referred to above, see also PENA

and voto, respectively for dispensation from penalty and from vow.

The dissolution of a ratified and non-consummated Marriage, granted by the Supreme Pontiff, is also called a dispensation: v. MATRIMONIO.

Giovanni Miceli

III. CIVIL L[AW].

I. GENERAL NOTIONS

Organized civil society, the State, has the right and the duty to establish juridical norms aimed at regulating the life of its members.

This derives from the fact that God himself, in dividing "the government of the human race between two powers, the ecclesiastical and the civil, the one set over divine things, the other over human things" (Leo XIII, encyclical Immortale Dei, 1 November 1885, § 6), thereby conferred upon the State the power to issue juridical commands within the sphere of its own competence. From this is drawn the obligation of the members of society to obey the norms issued by the human legislator, when these do not conflict with the norms of divine law — natural and positive — and with the teaching of the Church, and when the State does not overstep the limits set to its action: "all ... things, moreover, that fall within the sphere of civil and political competence, it is right that they be subject to the civil authority, since Jesus Christ expressly commanded to render to Caesar what is Caesar's, and to God what is God's" (Immortale Dei, § 6). On the moral obligation to obey civil laws, see below no. II.

Civil law (which falls within the category of human laws) is the deliberate and conscious juridical thought, expressed by appropriate organs, which represent the prevailing will in an associated multitude, which in law manifests its politically unitary organization. It can be defined as a rule of conduct applicable to a generality of persons and to an indefinite number of cases, whose observance is made obligatory by means of coercion. The foundation of law is public assent, whether it is manifested directly in approving the law itself, or indirectly in supporting the authority from which it emanates. In this sense and with this clarification, the Roman definition of communis rei publicae sponsio can be applied to any law, even one proceeding from a ruler who governs authoritatively.

As regards the Italian legal order, with which we are concerned here, the word law can assume multiple meanings; indeed, besides the distinction between law in the formal sense and law in the substantive sense (denied, moreover, by an authoritative part of the doctrine), the Italian legislator often speaks of law in the generic sense of source of law, of acts having the force of law, etc. (v. FONTI DEL DIRITTO). Here only law is treated, understood as the result of the legislative function "exercised collectively by the two Chambers" (art. 70 of the Constitution).

In the process of formation of a law (by which is meant the entire iter necessary for there to be a law that must be observed) various moments can be distinguished: the initiative of the law, the examination and approval by the two Chambers (v. PARLAMENTO; POTERI PUBBLICI), the promulgation, the publication, the entry into force.

The initiative of the law, that is, the faculty of setting in motion the mechanism that will submit to the Chambers a bill which, through their determining decision, will be transformed into law, belongs to the government, to each member of the Chambers, to certain organs and bodies (which at present are the National Council of Economy and Labour and the Regional Councils), and finally to the people, who exercise it by the proposal, by at least fifty thousand electors, of a bill drafted in articles (art. 71 of the Constitution).

The examination and approval are carried out by the Chambers according to three different systems: a normal one, an abbreviated one for bills whose urgency has been declared, and finally one which in practice removes the bill from discussion by the assemblies, entrusting its examination and approval to appropriate committees reflecting the composition of the parliamentary groups (art. 72 of the Constitution).

The law approved by the Chambers is transmitted to the President of the Republic for promulgation. This has the purpose of attesting that the law exists, and the President has the obligation to proceed with it, save for a specific declaration of urgency by the Chambers, within one month of approval. The President of the Republic (who is excluded from the actual formative process of the law, since in the present Italian legal order there is no act equivalent to the sanction that used to be given by the king) may however, before promulgation and where he perceives the necessity, return the law to the Chambers with a reasoned message, in order to request a new deliberation; if the Chambers approve the law anew, it must be promulgated. Promulgation must be immediately followed by publication, by the Minister of Justice, who must provide for the insertion of the original text of the law in the Raccolta ufficiale delle leggi e dei decreti della Repubblica, for the announcement in the Gazzetta ufficiale della Repubblica Italiana of the insertion having taken place, and for the publication in the Gazzetta itself of the text of the law. From the moment of publication begins the so-called vacatio legis, which, save for contrary provision, is fifteen days (arts. 73 and 74 of the Constitution). It should also be recalled here that the present Italian legal order distinguishes between ordinary laws and constitutional laws (among which are those revising the Constitution); the latter must be approved by the Chambers with specific formalities (art. 138 of the Constitution).

Rodolfo Danieli

II. MORAL OBLIGATION

The question whether laws issued by the civil authority bind in conscience is a timely and much discussed one. Leaving aside certain particular problems that deserve specific treatment, such as those concerning laws on tributes and taxes, on military service, merely penal laws, and those issued by tyrants or usurpers and relating to the Church and to clerics, it is appropriate to pose the problem in general terms.

The civil legislator can, first of all, issue laws that bind in conscience; for every authority comes from God and is exercised in the name of God. Classic on this point is the passage of St. Paul (Rom. 13:1-7), preceded by Prov. 8:15 ff. and Wis. 6:2-5, and confirmed by Pt. 2:13 ff., by the doctrine of the Church (cf. Leo XIII, Immortale Dei, 1 Nov. 1885; Libertas, 20 June 1888; Inter gravissimas, 16 Feb. 1892), by the practice of the Church, and by the theologians, beginning with St. Thomas (the principal texts in I. Lo Grasso, Ecclesia et Status, fontes selecti, Rome 1939, nos. 2, 28, 35, 98, 102, 413, 649 ff., 661 ff., 690, 696).

It is likewise peacefully admitted by all that just civil laws become binding in conscience after the judge has pronounced for their application in an individual case. If this were not so, one would be heading for social chaos.

But concerning the binding force in conscience, prior to the judge's sentence, of civil laws that concretely exist, and the extent of such binding force, theologians do not agree. Some assert that almost all civil laws bind in conscience, and they prove the thesis from the texts cited, from the reason of the common good, which would demand this obligation, from the fact that the legislator is nowadays generally a body in which the use of authority is independent of the ideas of individuals, while each one intends to use the power he has in its fullness; from the fact that if non-obligation in conscience were admitted there would be too many evasions of the laws, whose burden would be made to fall on the few, and individual arbitrariness would find every pretext to evade social burdens; a timely example is the swarming of so-called conscientious objectors.

The more common opinion, at least until recently, asserts instead that the majority of state laws do not bind in conscience except after the judge's sentence. The reasons are: 1) the multitude of laws; they are so many and poured forth continuously that subjects are physically unable to know them. 2) At present most legislators are not concerned at all with moral obligation, content that the law be observed, even by force alone; the basis of the social order is a human, not a religious, foundation. 3) Many upright individuals think and act thus. 4) Authority must be used with prudence, and therefore must impose burdens as little as possible. Now since the end of society can be attained without obligation in conscience, reason says that the legislator should not use his power to that extent. 5) Finally, many citizens are not concerned with moral obligation; to wish to impose it on others, perhaps on a minority, is not equitable; a civil obligation therefore suffices. Nor should it be objected that legislators do not declare their will on the matter, since it is enough that this can be deduced from positive indications.

The reasons are undoubtedly of some weight, but not apodictic. Indeed, recently a tendency favorable to giving greater value to moral obligation has been gaining ground.

Today the following state laws are considered binding in conscience: 1) those which sanction natural or divine right (homicide, theft, restitution, family duties) or determine indeterminate natural right (succession, the right of property). In this case the obligation precedes the state law and does not arise completely from it. Public order already of itself demands that questions and conflicts between the internal and external forum in matters of rights be removed.

In particular, there belong to this category the laws that regulate the birth, duration, use, and extinction of patrimonial rights, etc. Today many labor laws, which regulate working relations between employer and worker concerning wages, family allowances, and social security, must likewise be considered binding in conscience. Laws that render persons incapable of certain acts, or invalidate acts performed without formalities, are considered binding in conscience if they concern the essential conditions of the act (mental insufficiency, error or violence, etc.). Those that touch only the formalities or external solemnities of the act (notarial act, registration, written form, etc.) are not judged binding in conscience before the judicial sentence.

2) All just laws after a judicial sentence has intervened, since the common good and public tranquility so demand. But if the sentence is based on non-existent data or applies an iniquitous law against the rights of God or of the Church, it does not bind. 3) Those that are commonly held binding in conscience by prudent persons or by the sound majority of the population.

The judgment is generally founded either on the nature of the thing commanded or on the higher reason of the common good (for example, in time of emergency). By reason of scandal or of piety certain laws can bind particular persons: a priest, for example, or a son may be held in conscience to observe a particular law, the first to avoid scandal, the second to avoid reprisals against his family. On the other hand, state laws attended by an excessive pecuniary penalty are considered to be without moral obligation.

Coming down to the concrete, the criteria are very unstable. Nevertheless: a) a certain obligation must not be created where there are no certain reasons; b) certain criteria are the matter pertaining to natural or divine or ecclesiastical right, the evident common good, and the just sentence of the judge.

Sisinio da Romallo

III. OBLIGATION OF RESISTANCE TO UNJUST LAW.
— In order for a human legal provision to have moral and juridical efficacy, it must proceed from two presuppositions: 1) God, transcendent, creator and ordainer of nature, and therefore the first true legislator with the natural law, of which positive law must only specify the generic norms, supplement deficiencies, prevent and punish violations. 2) A historical-divine fact, the existence of the Catholic Church, a perfect society, to which God assigned the social religious powers. Unjust therefore and non-existent is the law that tramples upon the natural law or diminishes the native and essential rights of the Church (cf. can. 2205 § 3). To this intrinsic injustice is added extrinsic injustice, in the case of a usurper.

Faced with intrinsically unjust law, the problem arises of how the subject is to conduct himself.

1. Historical notes

That there exists, at least sometimes, the obligation of the faithful or of subjects in general to resist an unjust law is documented by many historical and scriptural examples. The Egyptian midwives (Ex. 1, 15 ff.), the prophet Elijah (III Kings, 17 ff.), Tobit (2, 9); the Maccabees (I Mach. 1, 65-67; 2, 19-26; II Mach. 6, 23-26) found themselves faced with unjust laws and refused to observe them. Jesus, while asserting that one should give to Caesar what is his due (Mt. 22, 21), while acknowledging in Pilate as judge the power to judge (Is. 19, 11), speaks at the same time of a duty of resistance (Mt. 10, 17 ff.) and of abuse of power. The Apostles, while recommending subjection to the public powers, however unfaithful (Rom. 13, 1 ff.; Tit. 3, 1; I Pet. 2, 13), in the case of a higher right declare resistance to be a duty (Act. 4, 19; 5, 29; Phil. 1, 13; I Pet. 4, 16) and seal this principle with their blood, followed by the martyrs.

With the total Christianization of the Empire and the conversion of the Germanic peoples, the juridical situation takes on a different shape. In the face of injustice the principle is applied even in public law: «Vim vi repellere» (18, X, V, 12); the struggle over Investitures and for the liberties of the Italian Communes, sustained and supported by the Popes, proves a resistance more than passive to the arbitrariness of civil power. But here the public law of the time may perhaps have had an influence (cf. Pius IX, Allocution, 20 July 1871, in I. B. Lo Grasso, Ecclesia et Status, Rome 1939, n. 648).

While at the dawn of the modern age Machiavelli and Lorenzino de' Medici legitimize rebellion and regicide, the Church follows passive and legal resistance (the schism of Paolo Sarpi; Gallican questions, etc.). The Protestants, having attained power through violence, uphold full subjection, smoothing the way for later reactions. The Gallicans join them.

The social errors of the 19th and 20th centuries (liberalism, state absolutism, etc.) and the practice followed by them posed the problem in an often tragic manner, with large-scale violations of the natural law and of the Church. The natural principles on the matter, confirmed by the ecclesiastical magisterium, are here summarized.

2. Theoretical solutions

The possible solutions to the problem of unjust law are: either pure and simple acceptance or cooperation, total or partial, or merely material cooperation in execution, or passive and legal resistance, or organized active armed resistance.

a) Every intrinsically unjust law does not exist as a true law; to accept it is always unlawful; against it one must oppose at least passive resistance (not to obey) and legal resistance (to use the means recognized by public law to move the power to recede: the press, diplomatic action, public opinion, etc.). Used well and organized, the means at the disposal of citizens often in the long run attain the goal: thus with Napoleon, with Bismarck, in France before and after 1905, in Italy after 1871 and in the painful events of 1931. This is the constant teaching in the various encyclicals of Leo XIII (Quod apostolici muneris, 28 Dec. 1878; Diuturnum, 29 June 1881; Immortale Dei, 1 Nov. 1885; Libertas, 20 June 1888; Sapientiae Christianae, 10 Jan. 1890); of Pius X (Vehementer, 11 Feb. 1906; Gravissimo, 10 Aug. 1906); of Pius XI (Ubi arcano, 23 Dec. 1922; Firmissimam constantiam, 28 March 1937); of Pius XII (various messages and allocutions). Leo XIII says: «There is a motive in men for not obeying, whenever what openly conflicts with divine and natural law is demanded of them» (Diuturnum); «then to resist is a duty, not to obey a debt» (Libertas); and he laments the baneful connivance of Catholics, so that the evil increases without an effective remedy (Sapientiae). Pius XII, denouncing the persecution in Hungary, appeals to unconquered fortitude and to the union of Catholic energies, nourished by Grace, since for the rights of the Church one must endure labors and even the loss of life, if necessary (AAS, 41 [1949], p. 29 f.).

b) Sedition or rebellion properly so called and the related conspiracies for the purpose of changing the legitimate government, which does not gravely abuse its authority, are intrinsically unlawful (Mt. 22, 21; Rom. 13, 1 ff.; etc.; Gregory XVI, Mirari, 15 Aug. 1832; Pius IX, Syllabus, nn. 63-64; Leo XIII, loc. cit.; Pius XI, Ubi arcano, etc.).

c) Under determinate conditions active armed resistance is lawful, indeed, according to some theologians, obligatory, regicide excluded (personal defense in actu aggressionis being safeguarded). Circumstances play a decisive part. St. Thomas says (Sum. Theol. 2a-2a, q. 42, a. 2): «The tyrannical regime is not just, because it is not ordered to the common good, but to private good... To shake off this regime is not rebellion, unless the uprising (perturbatio) is carried out with insufficient tactics, provoking greater evils... the true seditious man is the ruler...» In the De regimine principum (I, ch. 6) he proves the assertion with historical facts or facts held to be such, for example, the expulsion of Tarquinius Superbus from Rome.

Bellarmine goes further and speaks of a duty of resistance (De Romano Pontifice, Venice 1596, bk. V, ch. 7). Christians, he says, cannot tolerate the government of an unfaithful prince who attempts to detach them from the true faith, the integrity of the faith being of natural law. That the Church did not use this right in the first centuries is due to the lack of means sufficient for a good outcome; and ancient and recent history (England) proves this necessity. The abandonment of legitimate defense is reproved by nature; and, since faith and life can be preserved, one is obliged to preserve both. If it was lawful for the Maccabees to take up arms, under the same conditions it is lawful in the New Testament.

Few authors, either because of a Gallican tinge or because they were based on pontifical documents interpreted out of context, said that armed resistance is unlawful. The question was much agitated recently, during the long persecution of Mexico, in which passive and legal resistance obtained nothing. Pius XI, with the encyclical Firmissimam constantiam, then posed the problem and resolves it thus: the practical solution depends necessarily on the concrete circumstances, certain principles to be always kept in mind being safeguarded. Namely: a) the claims have the character of a means or of a relative end, not of an ultimate and absolute end; b) therefore they must be constituted by lawful actions and not intrinsically cally evil; c) they must be suitable and proportionate to the end and in fact conducive to the end in whole or in part, provided that they do not bring upon the community and upon justice greater evils than those they intend to remedy; d) the use of these means and the full exercise of political rights, touching upon problems of a merely technical and material order or of violent defense, do not fall directly within the tasks of Catholic Action or of the clergy, whose task is instead the formation of conscience. In case of difficulty the hierarchy can issue a practical judgment of conduct. These principles are nothing other than the conditions laid down by theologians and philosophers for the lawfulness of resistance to unjust l. They too require: a) that it be a question of grave, long-continued, evident injustice; b) that there be no other more effective means; c) that success be probable; d) that no greater evils be foreseeable; e) that the judgment of opportunity belongs to enlightened persons, and for the religious field the injustice must be judged by the ecclesiastical authority; f) that honest means be used. In theory, therefore, the solution is affirmative as regards the lawfulness of resistance; in practice it depends on historical and environmental circumstances to judge the opportunity of having recourse to it.

In determinate circumstances material cooperation with regimes issuing unjust l. and with their execution is lawful. Thus it was practically suggested during the French Revolution (Pius VI), in the Third Republic (Leo XIII); in Italy before the Concordat and in 1931 (cf. AAS, 23 [1931], p. 307) and in general terms recently by Pius XII in his address to jurists (AAS, 41 [1949], p. 597 ff.).

IV. CRIMINAL LAWS

The first and essential effect of law is to create an obligation, so that the subject is no longer free to choose. There are, however, degrees of obligation, both as regards the matter imposed and as regards the will of the legislator; thus there is grave and light obligation, purely moral, purely penal, and mixed. A moral law creates an obligation in conscience before God; its violation constitutes a theological fault (sin), punishable by God with temporal or eternal punishments. A purely penal law obliges only to undergo, in the event of violation, the punishment eventually inflicted. A mixed law is a moral law, furnished with a human sanction, to be undergone before or after the judge's sentence. It should be noted, however, that in penal laws the obligation to undergo the punishment inflicted is by its nature moral (in conscience).

1. Nature of penal law and related theories

The nature of penal law is variously explained. Some say that it is a disjunctive obligation: that is, the legislator leaves the subject free to choose either the observance of the law or the penalty. This theory was in vogue at the end of the last century, but it, at least in its external form, has the fault of suggesting that the legislator is indifferent to the subject's decisions, whereas in fact he wills obedience to the law. Others explain merely penal law with the theory of an obligation that is only juridical or civil (it seems already enunciated by Billuart, and today it attracts greater sympathy): the legislator considers it sufficient that the subject be obliged to the law only in the external forum; the transgression therefore constitutes directly a juridical fault, for which account must be rendered only to society; indirectly it obliges in conscience to undergo the punishment inflicted. This corresponds better to the concept of law and to the intention of the legislator.

The first example of the introduction of penal laws goes back to the constitutions of the Dominicans, in the form drafted by the General Chapter of 1236: the Constitutions were then imposed only sub poena. The reason given by the commentators was that religious souls, amid the variety of prescriptions, might not find frequent occasion of sin. Henry of Ghent restricted the doctrine of merely penal laws to laws whose object was indifferent matters, but he transferred it also to the field of civil laws. John of Imola went so far as to affirm that all civil laws were penal, even advancing doubts about the competence of civil authority to oblige in conscience. A foundation was found (from St. Raymond onward) in the axiom of the glossators, which passed with some modification into the 23rd regula iuris in the Sixth: « Aliquis punitur quotidiis iuste et licite sine culpa, sed non sine causa ». William of Rennes applies the doctrine to taxes, fines and corporal punishments. The Summa Angelica of Angelo da Chivasso, accepting with some imprecision the theory of Henry of Ghent, through its wide diffusion made it common, though it was opposed by the Summa Sylvestrina (of Silvestro Prieras). But the great theorist of the doctrine of penal laws was, with his work De potestate legis poenalis libri duo (Salamanca 1550), the Minorite Alfonso de Castro (1495-1558). St. Robert Bellarmine opposed the theory; but with Suárez (De legibus, Coimbra 1612, I, V, chap. 3 ff.) the theory is definitively affirmed without opposition, except for two or three authors at the beginning of our century.

The reasons for this judgment are manifold: a) he who can do the greater can certainly do the lesser; since the legislator can impose an obligation in conscience, there is no difficulty in his being able to impose a lesser obligation, when this depends on his will; b) all agree that the legislator can impose matter grave in itself under a light obligation; it is not repugnant that he be content with an imperfect mode of obliging. It is true that every law must have its sanction; but in things merely useful to the common good, the authority that can choose one law rather than another can likewise prefer one sanction to another, when in this way it is able equally to attain the end of the law; c) here in fact the external obligation is not denied, certainly sufficient in a society where the individual must answer for his actions only in the external forum; d) the end of the law is perhaps attained more effectively, since fear prevails with many more than does the obligation of conscience.

In short, it may be said that this theory finds its reasons in the contingent matter that penal laws have as their object; in the strictly temporal end that civil law intends to attain, for which a single civil obligation suffices; in the demand of a better distributive justice, which claims equal burdens for all; in the duty of superiors to avoid, as far as possible, for their subjects the dangers of sin, and in the modern mentality that conceives civil society as sufficiently defended by a purely civil obligation of the law, which bases its foundations no longer on ethical and religious elements.

2. Existence of penal laws

Divine law (natural and positive) contains only moral laws. The Church, founded for the specific purpose of the ultimate spiritual good of the faithful, dispenser of the supernatural means of sanctification, often lacking external coercive means or averse to using them, has in herself all the motives for obliging with her laws in conscience, and she does so ordinarily, unless it is a question of secondary things, of norms of a purely directive character. An official confirmation of this is found in the decree of the Sacred Congregation of Religious, which approved the statutes for the Sisters torriere (16 July 1931: AAS, 23 [1931], p. 380), where no. 125 says: « Quae in his statutis continentur e Codice iuris canonici aliusve Ecclesiae legibus deprompta, conscientiam sororum ita ligant ut sine culpa violari non possint ».

In religious institutes there are usually many penal laws by express declaration of the law. In general, prescriptions that are not of common law and do not touch the vows or the cornerstones of the respective institute (enclosure, choral office, etc.), excluding contempt or scandal, have the value only of penal laws (in concrete terms, however, the violation may be a sin because of the circumstances). The Franciscan Rule is an exception (3, V, 12, in VI; 1, V, 11, in Clemen); for the Discalced Carmelites the Rule obliges under pain of venial sin (Constitutiones, no. 4).

Civil laws that sanction divine law, that determine generic natural law, in particular as regards commutative justice or morality, oblige in conscience, the common good so requiring. Similarly other laws that by the common judgment of upright and learned persons induce a moral obligation; for example, in times of public emergency the laws relating to the security of the nation, to the price — assumed just — of indispensable goods, to the delivery of products within a certain measure; in the case of an oath, certain trade-union laws. Within determined limits direct taxes are held to be obliging in conscience; and under determined conditions military service. In the same matter there can be different obligations; thus the prohibition of hunting without a permit is held to be penal; whereas the prohibition for children to carry weapons below the legal age is held to be moral.

Criteria assigned by moralists for recognizing penal laws are: 1) the interpretation of upright and competent persons, as well as their practice; 2) the express declaration of the law (as in religious institutes, in the United States); 3) a penal sanction raised out of proportion to the fault; 4) the matter, if the law touches things indifferent in matters of morality (cleanliness, roadability, etc.). In any case contempt of authority or scandal can constitute a grave fault; as can the attempted corruption of public officials.

In case of doubt quod minimum tenendum est. Nonetheless, as a general rule, due reverence must be paid to authority, by observing its laws.

V. IRRITATING CIVIL LAWS

Particular consideration deserves, in relation to their binding force in conscience, the irritant civil laws (which must be carefully distinguished from merely prohibitive laws or from civil laws that deny a civil action regarding certain acts: for example, art. 1933 of the Italian Civil Code). In a broad sense, those laws may be called irritant in which an impediment to the efficacy of the transaction can manifest itself. These defects, which prevent the attainment of the purposes for which the transaction is intended, are grouped or can be grouped into different categories. Bearing in mind above all Italian civil law, the law can, by irritating more or less gravely, declare the nullity of the transaction, or its voidability, or rescission, or termination. Leaving aside the latter, which manifests itself through a defect in the life of the relationship, without direct reference to its constitution, there are here three gradations.

The most serious form of invalidity of a legal transaction is nullity: a transaction that the law declares null is practically as if it had never existed, for lack of essential requirements (cf. arts. 1418 ff. of the Italian Civil Code). The second form is voidability, by which the act exists and may even produce its effects, but a subject is given the power to seek its annulment, retroactively eliminating every direct consequence (cf. Italian Civil Code, art. 1425 ff.). With the third form, rescission, the transaction is left valid by the law, but rescindable, with a result very similar to that of annulment. The basis of rescission consists in the violation of a criterion of substantial justice and equity (cf. arts. 1447 ff. of the Italian Civil Code). In the case of simple rescission, theologians commonly hold that the act thus affected by the law is to be considered valid in conscience before the judge's sentence, which may however be sought, subject then, naturally, to his decisions even in conscience. As for the value in conscience of laws that declare an act null or voidable, the opinions of theologians can be grouped into three classes: a) some regard such laws, which are determinative of rights, as valid in conscience and therefore as invalidating the act even in the ethical sphere, before the judge's sentence (cf. I. Bouquillon, Theol. mor. fund., 3rd ed., Bruges 1903, p. 474). b) Others regard such laws as purely penal and therefore binding in conscience only after the judge's sentence (cf. Seraphinus a Loiano, Inst. theol. mor., II, Turin 1937, p. 18). c) Others finally hold that invalidating laws leave naturally valid acts in their full value in conscience until the judge's sentence, unless the contrary intention of the legislator, based on a true requirement of the common good, is certainly established (cf. E. Génicot-I. Salamans, Inst. theol. mor., 13th ed., I, Brussels 1936, p. 511 ff.).

In practice, given these different points of view, before the judge's sentence, whoever has an interest in the validity dell'atto può in coscienza ritenerlo tale e agire in conseguenza; chi invece ha interesse alla sua irritazione può chiedere a tal fine il ministero del giudice. Promulgata poi la sentenza ciascuno deve osservarla anche in coscienza.