LEGGE

LAW. — In general it indicates the “constant form” that must govern the becoming of both physical phenomena (physical law) and human actions (moral and juridical law); in the first case, law constitutes the sphere of the regularity of nature, while in the second it founds and actualizes 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 actualizes the tendency inherent in every nature to tend toward its own perfection; the content of laws and the manner of their actualization therefore depend on their respective essences.

OUTLINE:

I. General Concepts and Classifications

II. Ecclesiastical Law

III. Civil Law.

I. GENERAL CONCEPTS AND CLASSIFICATIONS.

Law, in the strict sense, is opposed to freedom and does not pertain to the sphere of man’s free actions, but only to stimulate and regulate the exercise of individual freedom within the harmony 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 specii consequitur” (C. Gent., III, 114). In its common essence, law is therefore defined as: “Regula et mensura actuum secundum quam inducitur aliquis 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 practical intellect, of which it forms the fundamental act: “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 dicetur qui hoc quod apprehendit ordinat ad opus” (ibid., 1a, q. 79, a. 11). Since law directly concerns the sphere of external activity, it entails, on the one hand, that man, who is by nature a social being, must be ordered toward the common good of all; for this reason, or rather to ensure that such common good is safeguarded, law must be promulgated, that is, made publicly known to the members of society by the authority that governs the society itself. Thus we arrive at the complete definition of law: “quae est 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 governance of all things: “Ratio gubernationis rerum in Deo sicut in principe universitatis existens” (ibid., 1a-2ae, q. 91, a. 1). From the eternal law derives the ordering of all things in a manner befitting their respective natures so that, through their actions, they may tend toward their end.

Yet natural law assumes 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 others; natural law therefore has in man not merely or properly an “executive function” as in other beings, but the very practical reason of man becomes aware of the value of acts (quid sit bonum et quid sit malum) by virtue of his spiritual light. This light is created by God and therefore derived from the eternal law, whereby natural law “nihil aliud est quam participatio legis aeternae in rationali creatura” (ibid., 1a-2ae, q. 91, a. 2). In effect, this “participation” of man’s practical reason in the eternal law consists—analogously to what occurs in speculative reason with the immediate knowledge of the first speculative principles—in the immediate knowledge of the first moral principles that must in general regulate human actions. These first principles of morality in man are what 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-2ae, q. 94, a. 4 ad 2; cf. ibid., q. 91, a. 3 ad 1 and 1a, q. 79, a. 12). *Synderesis* (or *sinteresis*) constitutes the deepest core of man’s moral conscience, from which he proceeds to determine concretely, in singular actions or objects, their goodness or malice, and thus is almost one with moral conscience itself (ibid., 1a, q. 79, a. 13). From natural law derives “human positive 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 particular laws of human action (ibid., 1a-2ae, q. 91, a. 3; q. 100, a. 5 ad 4). In this human positive law, St. Thomas distinguishes a twofold category of precepts: the first embraces the “conclusions” that necessarily derive from the first moral principles, as when from the supreme principle “no one should ever do harm” 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 should be punished” one proceeds to determine concretely the nature and manner of punishment for different crimes; the first class in a certain sense still belongs to natural law, while the second properly constitutes human law and has value only by positive disposition (ibid., 1a-2ae, q. 94, a. 12). Yet just as natural law derives its validity from its conformity with eternal law, so human positive law draws its efficacy from its subjection to divine law and from its conformity with natural law; hence 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 of themselves oblige in the forum of conscience, unless they give rise to scandal or disturbance of the public order (ibid., 1a-2ae, q. 96, a. 4). In the economy of Divine Providence, positive divine law was granted directly by God to 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, namely the precepts of the Decalogue, was preserved and perfected by Christ, but in what was strictly “figurative” of the coming Messiah, such as ceremonies and sacrificial rites, was abolished at His coming (ibid., 1a-2ae, q. 98, a. 2). Finally, there exists ecclesiastical positive law, which pertains to the Church as a perfect society.

The problem of law is present from 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 denote what depends on man and what depends on the necessity of nature. The necessity of *physis* found its expression in *νόμος*, destiny, to which in the Homeric poems not only heroes but the gods themselves are subject: executors and guardians of *νόμος* are the Furies (Iliad, XXI, 410, 414; cf. XIX, 404, 418). The *Odyssey* shows an attempt to free oneself from *νόμος* through *φύσις*, which corresponds to the personal courage of the heroes. Hesiod’s intention in his *Theogony* is to describe the divine origin of cosmic order (*φύσις*), but also to indicate the execution of a plan that culminates in the triumph of order over initial disorder or chaos (*φύσις* or *νόμος*); this aim is also pursued by the elaborate Orphic theogonies, which would later be taken up by late Neoplatonism. The Sophists were all engaged in the contested primacy between *φύσις* and *νόμος*, with some siding with nature (Hippias, Antiphon, Prodicus), while others sided with law, as did Archelaus, according to whom justice and baseness are not the effect of nature but of human action: *τὸ δίκαιον ἐννόμως καὶ αἰσχρὸν οὐ φύσει, ἀλλὰ νόμος* (Diels-Kranz, *Die Fragmente der Vorsokratiker*, Berlin 1935, Fr. 60 A 1; vol. II, p. 45). But what if the tyrant, like Creon, prevails over the individual’s innocence and seeks to impose the arbitrariness of his *φύσις*? It is then that Sophocles gives voice to the innocent Antigone, who appeals to the “unwritten laws” (*ἄγραφα νόμων*), “whose life is not of today or yesterday, but of all time” (Antig., 452-457). The essence of Greek tragedy lies in this conflict of *φύσις* and *νόμος*. It was the merit of Socrates (and later of Plato and Aristotle) to have synthesized these two opposing elements, showing that *νόμος*, when recognized and accepted, belongs to the very *φύσις* of fully developed man: this is especially in polemic with the absolute relativism of Protagoras, which resolved into utilitarianism and hedonism (cf. Xenophon, *Memorabilia*, III, 8, 2-3; Plato, *Protagoras*, 327 bc-328 ab, 334 a-c, 351 b-357 c; also *Theaetetus*, 151 e-152 where the famous saying is found: *πάντον χρημάτων μέτρον ἀνθρώπων εἶναι*). The relationship between *φύσις* and *νόμος* tends to relax in Democritus and especially in Epicurus, according to whom the gods do not care at all about this world; whereas for the Stoics the world is a divine work (*κόσμος*) and divinely ordered. It is to the Stoics that we owe the distinction between things that depend on us (*ἐφ’ ἡμῖν*) and those that escape our initiative or control, which we must endure (*ἀνέχου καὶ ἀπέχου*; cf. Epictetus, Fr. 10, from which comes the *ἀπαρχία*).

In medieval Jewish, Christian, and Islamic philosophy, the problem of law was developed in its three fields—religious, ethical, and political—in accordance with the orientation proper to each religion. Christian philosophy reached its theoretical summit with St. Thomas Aquinas, whose fundamental principles have been indicated above. Further developments occurred in the 16th century with F. de Vitoria and F. Suárez, to whom we owe notable treatments of *ius gentium*.

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 emerge: with Kepler and Galileo, new laws of astronomy arise; with Descartes, new laws of physics; closer to our time, with the discovery of the microscope, new laws of biology emerge; with the observation of human facts, new laws of psychology, history, sociology, economics, and politics arise, or in the entire field of the “sciences of the spirit” (*Geisteswissenschaften*). The meaning and value of laws depend on the orientation of individual systems (empiricism, phenomenalism, idealism, realism, rationalism, etc.); all this points back to the general problem of the value of “science” (v. DETERMINISM). As a return to the Greek conception of the *πόλις* that absorbs and dominates the fate of individuals, one may point to Hegel, for whom the perfected expression of “free will” and thus of human nature as such is law, or the external and political organization of the State (cf. *Vorlesungen über die Philosophie des Rechts*, §§ 29-30). The problem of law is therefore in function of the rectitude of the problem of reason in its relationship with the world and with other men, and of its foundation in God.

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II. ECCLESIASTICAL LAW

### I. NOTION

As with the jurisdiction of which it is a part (v. GIURISDIZIONE), ecclesiastical legislative power derives from the Church’s very nature as a perfect society. For the attainment of its supernatural end, it is necessary that the Church have the power to designate and impose the means suited to its pursuit; and it is precisely in this that legislative power consists.

Ecclesiastical law is divided: by its extension in space, into universal and particular; with regard to its recipients, into general and singular; with regard to its application, into common and special; by its object, into affirmative or precipitating and negative or prohibitive, and, according to some, also permissive; by the obligation it imposes, into simply moral (which obliges in conscience but without any sanction in the external forum), moral and penal together, i.e., mixed, also called simply penal (which obliges in conscience to do or omit something and to undergo a penalty in case of transgression), and simply 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 it is imposed for the transgression); by the manner of obliging, into personal (if it directly obliges persons, independently of territory) and territorial (local, when its efficacy is limited to the territory); by its effect, into simply prohibitive (when it renders the act illicit), irritant (when it renders the act not only illicit but also invalid), and disabling (when it renders the person incapable of a certain act; in effect, the disabling law is the same as the irritant law).

II. AUTHOR

According to the very notion of law, its author or source is he who has the care of the community and can dictate norms for the common good.

The legislative power is therefore part of the power of jurisdiction understood in its broadest and most complete sense as public power in the external forum, and the legislator is he who holds such power in its supreme expression, because the other functions that may be included in jurisdiction, namely, the executive and judicial powers, 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 and dependent manner from him, to the superiors of inferior communities who are invested with such power for a determined part of territory or subjects. Universal laws, i.e., those obligatory for 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, whether natural or positive. Both the pope and the Ecumenical Council can delegate their universal legislative power, but cannot renounce it and always retain the power to revoke or derogate from the laws of their delegates (v. FONTI DEL DIRITTO).

Within the limits established by the motu proprio *Cum iuris canonici* of 15 Sept. 1917, the Pontifical Commission for the Interpretation of the Code of Canon Law and, in exceptional cases, the Roman Congregations are invested with such power. The Sacred Congregations of the Holy Office, for the Eastern Church, and of Rites, insofar as their competence concerns a matter outside the Code of Canon Law (can. 6 n. 6, 1 and 2), exercise this 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 (for provinces) for their respective territory, but with the approval of the Sacred Congregation of the Council (can. 290-291); by residential bishops both in the synod and outside the synod (can. 362 and 335) for all non-exempt diocesans and within the limits of 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); furthermore, during the vacancy of the See, by the cathedral chapter for eight days after the news of the vacancy (can. 431 § 2), and thereafter by the vicar capitular (can. 432 § 1), while maintaining the principle: *sede vacante nihil innovetur* (can. 436). In clerical exempt religious institutes, legislative power is generally reserved to the general chapter; however, it is not excluded that the constitutions may extend it to others. Legates or representatives of the Roman Pontiff, whether *a latere* or with a permanent mandate (nuncios, internuncios, apostolic delegates), do not, by common law, possess legislative power. The same applies to the patriarchs of the Latin Church, primates, metropolitans (can. 271 sqq.), and vicars general.

III. OBJECT

Law, by its very nature, must be reasonable, therefore honest and just regarding the matter it concerns.

The object of ecclesiastical law is, in general, all that is necessary for the end of the Church, especially faith, morals, and discipline. For it is the Church’s office to propose, even through its laws, the revealed truths which the faithful are bound to profess (cf., e.g., can. 218, 731 sqq., 937 sqq.; 948, 1012 sqq., 1322 sqq., etc.). Moreover, since it is necessary that the faithful be directed to their supernatural end even by norms that guide their actions, the Church has the power to issue laws by which it determines and commands what must be done or omitted by individuals for their salvation (cf., e.g., can. 1037 sqq., 1316 sqq., 1399, etc.). Finally, since individual subjects are members of the Church’s social body, it can also issue disciplinary laws to safeguard social order and promote the common spiritual good.

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

In addition to being just and honest, the object of the law must be physically and morally possible.

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

IV. PROMULGATION

For a law to be observed, it must come to the knowledge of those to whom it is addressed.

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

V. VACANCY

Before the Code of Canon Law, there was no general norm determining the *vacatio* of ecclesiastical laws. Some, basing themselves on Nov. 66 of Justinian, required two months. But most, and shortly before the Code almost all, held that ecclesiastical laws obliged as soon as they were promulgated, though admitting that for some time ignorance might be presumed which would excuse from penalty; this period was extended even to two months outside Rome.

The Code of Canon Law establishes that laws of the Holy See take effect “only after three months have elapsed from the day indicated on the issue of the *Acta Apostolicae Sedis*, unless, by the nature of the matter, they oblige immediately, or unless in the law itself a shorter or longer *vacatio* has been expressly established” (can. 9 § 2). The three months of *vacatio* are therefore not to be counted from the date of the law, but from the date of the issue of the *Acta Apostolicae Sedis* in which it is published. It is to be understood that a law, by its very nature, obliges immediately when it is a declaration of divine law, whether natural or positive, a dogmatic law, or one destined to preserve the integrity of faith or morals (cf. also can. 17 § 2).

For legislators subordinate to the Holy See, the following norms apply: a plenary or provincial council must designate the time when its decrees begin to bind (can. 291 and 304 § 2); the laws of bishops bind immediately after promulgation, unless otherwise stipulated (can. 335 § 2); the constitutions of a diocesan synod, if promulgated within the synod itself, bind immediately, unless a vacatio is established (can. 362).

VI. SUBJECTS

Ecclesiastical law binds only members or subjects of the Church. Since one becomes a subject of the Church through Baptism, which imprints a character, ecclesiastical laws bind only those who have received II. However, even unbelievers are subject to God, the supreme legislator, and thus are also subject to divine law, both natural and positive, as proposed and declared by the Church, its infallible interpreter. They are not, however, bound by those positive divine laws (e.g., those mandating reception of the other Sacraments) that presuppose Baptism, until they have received II. By the same positive divine law, however, they are bound to receive Baptism after embracing the faith.

Apostates, heretics, schismatics, and the excommunicated, who after Baptism have renounced the faith and union with the Church, remain, by reason 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 raised in heresy and schism (can. 1099 § 2), are not bound to observe the canonical form in the celebration of marriage (can. 1099 § 2); those 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, further hold that material Catholics are not bound by laws that directly or primarily aim at personal sanctification (such as those on abstinence and fasting, observance of the festive precept, etc.), presuming that the Church does not intend to bind them, thereby offering an occasion of sin given the certainty of transgression. The majority of writers, however, hold the contrary opinion, since no indication suggests the Church’s will to grant such a general exemption, which moreover must be deemed excluded by the particular and explicit exemptions already noted. The CIC does not make this exception in can. 12 and 87. Moreover, these are principles of the utmost importance for ecclesiastical discipline. If material heretics or schismatics do not observe these laws because they are ignorant of them or cannot do so, the case falls under ignorance or inability, which excuses the fulfillment of the law and thus removes guilt.

While positive divine law does not subject unbelievers to ecclesiastical laws, natural divine law does not subject to them those who lack sufficient use of reason (can. 12), namely infants and habitual lunatics, whether such be congenital or acquired. Habitual lunatics are presumed to lack the use of reason even during lucid intervals. If the contrary is proven, however, they are subject to the law, both in the internal and external forum. Those temporarily deprived of the use of reason (through insanity, fever, etc.) remain fundamentally subject to the law but may be excused from observing II.
By positive ecclesiastical law, baptized persons who have not completed seven years of age are not bound by the laws of the Church, even if they have the use of reason (can. 12). Before the CIC, there was no positive norm on this point, and the principle in force was that laws begin to bind from the moment the use of reason is acquired. This entailed a factual judgment not always easy to make. Until the 18th century, it was fairly common to presume that the use of reason was not had before seven years of age, but was presumed afterward; yet the law was held to bind when the use of reason was in fact attained, even before seven years. St. Alphonsus considered the contrary opinion probable, which in the 19th century became the more general view, resting chiefly on the following argument: the law regards ordinary cases, not extraordinary ones, and ordinarily the use of reason is not had before seven years. The CIC has sanctioned this opinion. Even before seven years, children who have the use of reason may be subject to the law, provided the law states this expressly (can. 12). Such express mention is found for Baptism (can. 745 § 2, 2°), for an adequate disposition and instruction for Confirmation if received before seven years (can. 786 and 788; decree Spiritus Sancti of 14 Sept. 1946: AAS, 38 [1946], p. 333, n. 5), for annual Confession (can. 906), for paschal Communion (can. 859 § 1), and for Communion and Extreme Unction in danger of death (can. 854 § 2, 940). Upon completing seven years, the child is bound by all ecclesiastical laws, unless expressly exempted. The child is not bound to fast (can. 1254 § 2) and is excused from latae sententiae penalties (can. 2230).

The legislator is subject to the laws issued by a legislative body of which he is a member (e.g., a bishop with respect to a provincial council), because the authority of the body is superior to his own (cf. can. 291 § 2, 501–502). The Roman Pontiff is excepted with respect to an ecumenical council, since he is not only a member but also the head of II. A singular legislator is not subject to the coercive force of the laws he enacts by his own authority and is thus exempt from both ferendae and latae sententiae penalties. Nevertheless, since laws are directed to the common good, to which the legislator must also contribute, he is subject, by natural law, to the directive force of the law.

Specifically: a universal law binds all those for whom it was promulgated, i.e., its intended recipients (can. 13 § 1). A law promulgated for a particular territory binds when the following three conditions are met: a) that one is subject to it (not in cases of exemption); b) that one has domicile or quasi-domicile in that territory; c) that one is actually present there (can. 13 § 2). Upon leaving the territory, the subject is freed from its obligation. Absentees, i.e., those outside their own territory, are not bound by the laws of that territory for the duration of their absence (can. 14 § 1, n. 1), regardless of the reason for their departure, including the intent to evade the law. The reason is that, to achieve the purpose of the law, the legislator deemed it sufficient that it be observed within the bounds of the particular territory. Absentees are, however, bound by the laws of their own territory when these are personal in nature or when their transgression would cause harm within that territory (e.g., the law on residence [can. 465], on attending a provincial council or synod, etc.).

In case of doubt, the law is presumed territorial (can. 8 § 2). Strangers are not bound by the laws of the territory in which they find themselves, unless it concerns laws that provide for public order or determine the form of legal acts (can. 14 § 1, n. 2). In determining which laws provide for public order, authors are not in agreement. However, it may be considered that all those laws whose observance is necessary for the existence of society and the proper ordering of social relations—so that social life is not disturbed—are such laws. These include laws that determine the exercise of public authority or public offices, that directly safeguard external order (e.g., can. 1262-1263, 1295), those concerning the property of local things, and those whose violation would give rise to scandal. Strangers also incur the penalties attached to laws concerning public order (can. 2262 § 1); as for penalties not attached to such laws, authors are not in agreement. Sins and reserved censures, since the reservation is directed toward safeguarding public order, must also be considered binding on strangers.

For the defense of public order, authorities may also issue special laws for strangers. Finally, strangers are bound by universal laws, even if (by indult, privilege, concordat, custom, etc.) they do not have force in their own territory; they are not, however, bound if the law has ceased to be in force in the place where they are (can. 14 § 1, n. 3). Wanderers—those who have neither domicile nor quasi-domicile in any place—are bound by universal and particular laws in force in the place where they are (can. 14 § 2); they are not, however, bound by universal laws that do not oblige in that place.

V. also IGNORANCE; INTERPRETATION.

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VII. CESSATION

A law properly ceases when it definitively and completely loses, for the entire community, its binding force. This may occur due to an intrinsic cause within the law itself, when its purpose is no longer served; or due to an extrinsic cause, namely, the will of the legislator who abrogates it, or through desuetude or contrary custom. According to its object, a law may cease either entirely or partially, depending on whether it loses its binding force over its entire subject matter or only over part of II.
A law’s purpose is no longer served when, due to changed circumstances, it becomes morally impossible, harmful, unjust, or simply useless. If the purpose of the law ceases entirely and for the whole community or for the majority of it, the law ceases. If the purpose does not cease entirely, the law does not cease; however, in particular cases where the law becomes morally impossible, unjust, or harmful, it ceases to bind in those particular instances. It continues to bind, however, even in particular cases where it merely becomes useless, since it is ordered to the common good. A law ceases and does not revive even if the circumstances that gave rise to it return; for it to be revived, it must be promulgated anew.

In accordance with the principle stated, the CIC establishes that laws enacted to guard against a general danger bind even in particular cases where such danger does not exist (can. 21). Such laws are indeed directed not to remove or avoid existing harm, but to prevent the possibility of harm, and to avert this possibility not for the individual but for the community (this occurs, for example, with prohibited books). Nevertheless, such laws would cease if, in a particular case, they became morally impossible, unreasonable, or harmful.

Revocation of a law by the legislator is always valid; for it to be licit, a cause grounded in the common good is required. If the revocation is made by a subordinate authority with the legislator’s concession, a just cause is necessary for its very validity.

Revocation may be direct or indirect, depending on whether the legislator’s will is directed toward the revocation itself or toward a fact that necessarily brings it about. The CIC establishes that a later law abrogates an earlier one if it expressly revokes it, or if it is directly contrary to it in a way that makes them incompatible, or if it reorganizes the entire subject matter (can. 22).

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

In case of doubt, the revocation of a law is not presumed; rather, later laws must, as far as possible, be reconciled with earlier ones (can. 23). Nevertheless, correction of the law must be admitted beyond the cases in which it is proven, also in cases where otherwise absurdity would result. Furthermore, once the correction is proven with regard to the principal matter, it must also be admitted with regard to its extension. Revocation or correction is to be understood in an extensive sense when, through it, one returns to the existing common law.

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VIII. DISPENSATION

The notion of dispensation is intimately connected with that of positive ecclesiastical law, since dispensation is a derogation from the law in a particular case, granted for a just cause by the legislator or his delegate. No man can dispense from natural or divine law, for it lies beyond his competence. It is clear, therefore, that dispensation is possible only from positive human law.

Laws commonly take account of circumstances that might impede their execution, but they cannot foresee all cases or provide for those particular instances in which strict observance would cause harm to individuals. Preventing such private harm for reasonable motives is the purpose of the legislator in admitting the possibility of dispensing from the legislative norm—that is, of ensuring that in a particular case the law does not apply. However, if the derogation from the law granted in favor of a private individual could harm others or the community itself, it would lack legal foundation, for in case of conflict the private good must yield to the common good. In a broad sense, exceptions admitted by laws under certain conditions—without requiring the intervention of the legislator—may also be called dispensations, as, for example, the dispensation from the eucharistic fast for the sick after a month of bed rest.

It can dispense from ecclesiastical laws the authority that established them or a higher authority (can. 80): thus the Pope or the Holy See for general laws of the Church, however issued by it or by inferior legislators; the local Ordinary for diocesan laws (can. 82); the Ordinaries of the circumscription for the laws of provincial or regional councils (can. 82); religious Ordinaries for those determined by their constitutions. It is a constant tradition that the Pope can dispense from certain obligations contracted by a human act of the will, even though they are binding by divine law, such as a vow, an oath, and a ratified but not consummated marriage. In granting the dispensation, each authority can delegate this power to its subordinates either permanently or in individual cases.

Moreover, every Ordinary can grant dispensations that would normally fall within the competence of the Holy See, either by provision of law or by special faculty. The Code of Canon Law indicates cases of faculty *ex iure*, e.g., for the Easter Ember Days and for certain irregularities in sacred ordination, for banns and for some matrimonial impediments, for the law of fast and abstinence, for vows and oaths, for certain penalties. But in a general way, the law attributes to Ordinaries the power to grant dispensations from general ecclesiastical laws, from which the Holy See usually dispenses: a) when recourse to the Holy See is difficult and at the same time there is danger of serious harm due to delay (can. 81); b) in case of doubt of fact (can. 15). The granting of special faculties is usually given to those Ordinaries for whom recourse in individual cases would be burdensome or difficult either because of distance from Rome or because of the multiplicity or urgency of the cases involved (v. QUINQUENNIAL FACULTIES). Apostolic delegates and nuncios also 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 concession made either by the law (e.g., for obligations relating to holy days of obligation, abstinence, and fast: can. 1243 § 1) or by the competent authority.

From preceptive and non-inhabilitating general ecclesiastical laws, i.e., those that oblige all the faithful indiscriminately after the age of seven, physical or moral impossibility excuses by itself without the need for any dispensation; but to be exempted from 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 he himself issued, even without any reason, but this would harm his dignity and prestige and could frustrate the very purpose of the law. It is therefore necessary that the dispensation be justified by a cause which induces the legislator himself to grant the requested derogation.

The causes must be proportionate to the importance of the law from which derogation is sought; otherwise, a dispensation granted by an authority inferior to the authority of the law is null. The causes which induce the authority to grant the dispensation and which are indicated in the document of concession are called *motive* or *final* causes; the others, less grave, which are added, are called *impulsive* causes. The causes must be true at least at the moment when the dispensation becomes executory; but if the causes indicated in the report are different, it is sufficient and necessary for the validity of the concession that at least one of those *motive* causes be true. However, for matrimonial impediments of a lesser degree, the dispensation is always valid even if the cause is false (can. 1054). Sometimes, even if the individual causes are not sufficient by themselves, considered together they may acquire the value of a *motive* cause. In case of doubt regarding sufficiency, the dispensation can be validly and licitly granted (can. 84 § 2).

The request for a dispensation must be made to the competent authority by the interested party, clearly indicating the object and the causes. It is not excluded that a dispensation can be requested without the knowledge of the interested party.

The petition must correspond to objective truth, if one does not wish to risk the nullity of the concession.

When the request is made to the Holy See, it must reach its destination through the proper Ordinary. If the latter is favorable to the concession, he accompanies it with his commendatory letter (unless he deems it opportune or is obliged to make the request on behalf of the interested party); otherwise, he expresses his negative opinion, giving reasons. All requests made to the Holy See must be addressed to the Supreme Pontiff, but they must be transmitted to the ecclesiastical dicastery competent in the matter, which, after due consideration, will make the decision.

The granting of a dispensation can be done definitively, i.e., as it is called, in *gratiose* form, having effect from the moment the grantor intended to give the dispensation. But ordinarily it is granted in *commissory* form, i.e., the granting authority entrusts the execution of the concession either to the requesting Ordinary or to another designated person. For all this subject, V. also RESCRIPT.

It may sometimes happen that, having requested a dispensation from the Holy See which it usually grants, and the response being delayed, a grave and urgent reason arises which suggests immediate concession. Then the Ordinary can grant the requested dispensation himself, with the obligation to inform the authority to which he had applied.

The granting of a dispensation and its execution must be done in writing (though not under pain of nullity), so that they can be proven in an external forum.

Every dispensation takes 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 further effect; whereas a dispensation from eucharistic fast lasts for the entire time established in the concession. Therefore, the cessation of a dispensation can only take place when it has, as it were, a successive character, i.e., when it can be used by repeated acts. One can also renounce a dispensation after obtaining it and not using it at all or only for a certain time, if it has a successive character. But, just as a dispensation is null if it lacks the necessary cause, so, if the *motive* cause ceases entirely, its value also ceases (can. 86).

Moreover, a dispensation can cease by express revocation made by the grantor and communicated to the interested party.

Among the dispensations from ecclesiastical laws, those from matrimonial impediments occupy a special place, both for their frequency and for their social importance. The same norms apply to these, but they have certain particular aspects (v. IMPEDIMENT).

In the granting of dispensations of any kind, a tax is imposed with the purpose of acting as a restraint, a penal inhibition, and at the same time as homage to the Holy See for the favor received. But while this tax, although varying according to the type of dispensation or its importance, is the same for all, for matrimonial dispensations a traditional system of taxation is followed. Thus a distinction is made between the rich and the poor, i.e., between those who possess or earn up to a certain limit and those who exceed II. For the poor, a minimum tax is established, varying with the impediment (the destitute pay only expenses), while for the rich there is a *componenda*. This is a sum fixed case by case by the Holy See following an indication of the personal possessions of the spouses and their income. The percentage also varies according to the nature and gravity of the impediments. In ancient times, if a certain sum was exceeded, the dispensation was granted using the form of a *breve*, but subsequently the *rescript* form has been used for all. In addition to the matters mentioned above, V. also PENALTY and vow, respectively for dispensation from penalty and from a vow.

The term *dispensa* also refers to the dissolution of a ratified but unconsummated marriage, granted by the Supreme Pontiff: V. MATRIMONIO.

### III. CIVIL LAW

#### I. GENERAL NOTIONS
Organized civil society, the State, has both the right and the duty to establish legal norms aimed at regulating the lives of its citizens.

This derives from the fact that God Himself, by dividing “the governance of the human race between two powers, the ecclesiastical and the civil, one over divine matters, the other over human affairs” (Leo XIII, encyclical *Immortale Dei*, 1 Nov. 1885, § 6), thereby conferred upon the State the power to issue legal commands within the sphere of its competence. From this follows the obligation of citizens to obey the norms issued by human legislators, provided these do not conflict with the norms of divine law—whether natural or positive—and with the teaching of the Church, and provided the State does not overstep the boundaries set for its action: “all those things that fall within the scope of civil and political competence should rightly be subject to civil authority, since Jesus Christ explicitly commanded that what belongs to Caesar be rendered to Caesar, and what belongs to God be rendered to God” (*Immortale Dei*, § 6). Regarding the moral obligation to obey civil laws, see below, n. II.
Civil law (which falls under the category of human laws) is the deliberate and conscious juridical thought expressed by designated organs representing the prevailing will of an associated multitude, which manifests its political unity in the law. It may be defined as a rule of conduct applicable to a general class of persons and an indefinite number of cases, whose observance is enforced through coercion. The foundation of law is public assent, whether this 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* may be applied to any law, even one issued by an authoritarian ruler.

With regard to the Italian legal system, which is the subject of this discussion, the term *law* can assume multiple meanings. In addition to the distinction between law in the formal sense and law in the substantive sense (though this distinction is denied by a significant portion of authoritative doctrine), Italian legislators often use the term *law* in a generic sense to refer to sources of law, acts having the force of law, etc. (v. FONTI DEL DIRITTO). Here, only law understood as the result of the legislative function “exercised collectively by the two Chambers” (Art. 70 of the Constitution) is addressed.

In the process of law formation (meaning the entire procedure required for a law to come into force and be observed), several stages can be distinguished: the initiation of the law, examination and approval by the two Chambers (v. PARLAMENTO; POTERI PUBBLICI), promulgation, publication, and entry into force.

The initiation of a law—that is, the faculty to set in motion the mechanism that will submit a draft to the Chambers, which, through their decisive action, will transform it into law—belongs to the government, to each member of the Chambers, to certain organs and entities (currently the National Council of Economy and Labor and the Regional Councils), and finally to the people, who exercise this right through the proposal of a draft law prepared in articles and supported by at least fifty thousand electors (Art. 71 of the Constitution).

Examination and approval are carried out by the Chambers through three different procedures: one normal, one abbreviated for draft laws declared urgent, and one that, in practice, removes the draft law from discussion by the assemblies, entrusting its examination and approval to special commissions reflecting the composition of parliamentary groups (Art. 72 of the Constitution).

Once approved by the Chambers, the law is transmitted to the President of the Republic for promulgation. This serves to attest that the law exists, and the President is obligated to proceed with promulgation, unless the Chambers declare a state of urgency, within one month of approval. The President of the Republic (who, in the current Italian legal system, is excluded from the actual legislative process, performing an act equivalent to the sanction previously given by the King) may, however, before promulgation and if deemed necessary, return the law to the Chambers with a reasoned message requesting reconsideration. If the Chambers approve the law again, it must be promulgated. Promulgation must be immediately followed by publication, carried out by the Minister of Justice, who must ensure the insertion of the original text of the law in the Official Collection of Laws and Decrees of the Republic, the announcement in the *Gazzetta Ufficiale della Repubblica Italiana* of the insertion, and the publication of the law’s text in the same gazette. From the moment of publication, the so-called *vacatio legis* begins, which, in the absence of contrary provisions, lasts fifteen days (Art. 73 and 74 of the Constitution). It should also be noted that the current Italian legal system distinguishes between ordinary laws and constitutional laws (including those for constitutional revision); the latter must be approved by the Chambers with special formalities (Art. 138 of the Constitution).

#### II. MORAL OBLIGATION
The question of whether laws issued by civil authority bind in conscience is both timely and much debated. Setting aside certain specific issues that merit separate treatment—such as laws on taxation, military service, purely penal laws, and those issued by tyrants or usurpers concerning the Church and clergy—it is appropriate to address the problem in general terms.

The civil legislator can first of all issue laws that bind in conscience, since every authority comes from God and is exercised in His name. A classic passage in this regard is that of St. Paul (Rom. 13:1–7), preceded by Prov.

There would be too many evasions from civil laws if their obligatoriness in conscience were not required, with the burden falling on only a few and individual arbitrariness finding every pretext to evade social duties; a current example is the proliferation of so-called conscientious objectors.

The prevailing opinion, at least until recently, asserts instead that the majority of civil laws do not bind in conscience unless after a judicial ruling. The reasons given are: 1) the multitude of laws; there are so many and they come so thick and fast that subjects are physically unable to know them all. 2) At present, most legislators do not concern themselves at all with moral obligation, content that the law be observed, if only by force; the foundation of social order is a human one, not religious. 3) Many upright individuals think and act accordingly. 4) Authority must be exercised with prudence, and thus should impose burdens as lightly as possible. Since the end of society can be achieved without obliging in conscience, reason dictates that the legislator not exercise power to this extent. 5) Finally, many citizens do not concern themselves with moral obligation; to impose it on others, perhaps a minority, is not equitable; a civil obligation is sufficient. Nor should it be objected that legislators do not declare their will in this regard, since this can be inferred from positive indications.

These reasons are undoubtedly weighty, but not conclusive. Indeed, a tendency has recently gained ground that favors the strengthening of moral obligation.

Today, civil laws are considered binding in conscience when they: 1) sanction natural or divine law (homicide, theft, restitution, family duties) or determine indeterminate natural law (succession, right to property). In such cases, the obligation precedes the civil law and does not arise solely from II. Public order itself demands that disputes and conflicts between the internal and external forum be removed regarding rights.

In particular, laws regulating the birth, duration, use, and extinction of property rights, etc., fall into this category. Today, many labor laws regulating relations between employers and workers concerning wages, family allowances, and social security are also considered binding in conscience. Laws rendering persons incapable of performing certain acts or rights without formalities are considered binding in conscience if they pertain to essential conditions of the act (mental incapacity, error, violence, etc.). Those that concern only external formalities or solemnities of the act (notarial deeds, registration, written form, etc.) are not judged binding in conscience until a judicial ruling is issued.

2) All just laws after a judicial ruling, as required by the common good and public tranquility. But if the ruling is based on non-existent data or applies an unjust law against the rights of God or the Church, it does not bind. 3) Those commonly regarded as binding in conscience by prudent persons or the healthy majority of the population.

Judgment is generally based either on the nature of the commanded thing or on the higher reason of the common good (e.g., in times of emergency). For reasons of scandal or piety, certain laws may bind specifically: a priest, for example, or a son may be held to observe a particular law in conscience, the former to avoid scandal, the latter to prevent reprisals against his family. On the other hand, civil laws enforced with excessive pecuniary penalties are considered without moral obligation.

In practical terms, the criteria are highly variable. However: a) one must not create a certain obligation where there are no certain reasons; b) certain criteria are the subject matter pertaining to natural or divine or ecclesiastical law, the evident common good, and the just ruling of the judge.

III. OBLIGATION OF RESISTANCE TO UNJUST LAW. For a human legal provision to have moral and juridical efficacy, it must rest on two presuppositions: 1) God, the transcendent Creator and Ordainer of nature, hence the first true Legislator with natural law, of which positive law must only specify 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 granted social and religious powers. Therefore, a law is just and valid only if it respects natural law or does not diminish the native and essential rights of the Church (cf. can. 2205 § 3). To this intrinsic injustice may be added extrinsic injustice in the case of a usurper.

Faced with an intrinsically unjust law, the question arises of how the subject should conduct himself.

1. Historical notes

That there is, at least at times, an obligation for the faithful or 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 (3 Kgs. 17 ff.), Tobias (2:9), and the Maccabees (1 Macc. 1:65-67; 2:19-26; 2 Macc. 6:23-26) found themselves confronted with unjust laws and refused to observe them. Jesus, while asserting that what belongs to Caesar should be given to Caesar (Matt. 22:21) and acknowledging Pilate’s authority to judge (John 19:11), also speaks of worthy resistance (Matt. 10:17 ff.) and of the abuse of power. The Apostles, while recommending submission to public authorities, even if unfaithful (Rom. 13:1 ff.; Titus 3:1; 1 Pet. 2:13), declare resistance obligatory in the case of a higher right (Acts 4:19; 5:29; Phil. 1:13; 1 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 took on a different aspect. In the face of injustice, the principle “Vim vi repellere” (18, X, V, 12) was applied even in public law; the struggle for the Investitures and for the liberties of the Italian communes, supported and backed by the Popes, demonstrates a resistance more than merely passive to the arbitrariness of civil power. Here, however, the public law of the time may have had an influence (cf. Pius IX, Allocution, July 20, 1871, in I. B. Lo Grasso, *Ecclesia et Status*, Rome 1939, n. 648).

While at the dawn of the modern era Machiavelli and Lorenzaccio de’ Medici legitimized rebellion and regicide, the Church adhered to passive and legal resistance (the schism of Paolo Sarpi; Gallican controversies, etc.). The Protestants, having attained power through violence, upheld full submission, paving the way for later reactions. The Gallicans aligned themselves with this view.

The social errors of the 19th and 20th centuries (liberalism, state absolutism, etc.) and the practices that followed from them posed the problem in a frequently tragic manner, with large-scale violations of natural law and the Church. The natural principles on this matter, confirmed by ecclesiastical teaching, are summarized below.

2. Theoretical Solutions

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

a) Every intrinsically unjust law does not exist as a true law; to accept it is always illicit; at least passive resistance (non-compliance) and legal resistance (using means recognized by public law to compel the authorities to desist: press, diplomatic action, public opinion, etc.) must be opposed to II. When well and wisely employed, the means available to citizens often achieve their purpose in the long run: thus with Napoleon, with Bismarck, in France before and after 1905, in Italy after 1871, and in the painful events of 1931. This is a 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 states: “There is a reason in men for not obeying when they are asked to do what openly contradicts divine and natural law” (Diuturnum); “then resistance is a duty, non-obedience a debt” (Libertas); “the Church deplores the fatal connivance of Catholics, so that evil increases without an effective remedy” (Sapientiae). Pius XII, denouncing the persecution in Hungary, appeals to the indomitable fortitude and union of Catholic energies, sustained by grace, since for the rights of the Church one must endure toil and even the deprivation of life, if necessary (AAS, 41 [1949], p. 29 ff.).

b) Sedition or outright rebellion and related conspiracies aimed at changing a legitimate government that does not gravely abuse its authority are intrinsically illicit (Matt. 22:21; Rom. 13:1 ff.; etc.; Gregory XVI, Mirari vos, 15 Aug. 1832; Pius IX, Syllabus, nn. 63–64; Leo XIII, loc. cit.; Pius XI, Ubi arcano, etc.).

c) Under certain conditions, active armed resistance is licit, and according to some theologians, even a duty, excluding regicide (except in self-defense during an act of aggression). The circumstances play a decisive role. St. Thomas states (Summa Theologiae, II-II, q. 42, a. 2): “A tyrannical regime is not just, because it is not ordered to the common good but to private gain... To shake off such a regime is not sedition, unless the uprising (perturbatio) is carried out with insufficient tactics, provoking even greater evils... The true seditionist is the ruler...” In De regno (I, cap. 6), he supports this assertion with historical or purportedly historical examples, such as the expulsion of Tarquin the Proud from Rome.

Bellarmine goes further and speaks of a duty of resistance (De Romano Pontifice, Venice 1596, I, V, cap. 7). Christians, he says, cannot tolerate the rule of an infidel prince who attempts to separate them from the true faith, since the integrity of the faith is a matter of natural law. The fact that the Church did not exercise this right in the early centuries is due to the lack of sufficient means for success; and ancient and recent history (England) proves this necessity. It is contrary to nature to abandon legitimate defense; and when faith and life can be preserved, one is obliged to preserve both. If it was licit for the Maccabees to take up arms, under the same conditions it is licit in the New Testament.

Few authors, whether of Gallican leanings or basing their arguments on papal documents interpreted out of context, have claimed that armed resistance is illicit. The question was hotly debated recently during the prolonged persecution in Mexico, where passive and legal resistance achieved nothing. Pius XI, with the encyclical Firmissimam constantiam, addressed the issue and resolved it thus: the practical solution necessarily depends on concrete circumstances, while certain principles must always be kept in mind. Namely: a) the demands have the character of a relative means or end, not an ultimate and absolute end; b) therefore, they must consist of licit actions and not intrinsically evil ones; c) they must be suitable and proportionate to the end and in fact conducive to it, wholly or partially, provided they do not provoke greater evils for the community and justice than those they intend to repair; d) the use of these means and the full exercise of political rights, insofar as they touch merely technical or material issues or violent defense, do not fall directly within the tasks of Catholic Action or the clergy, whose role is rather to form consciences. In cases of difficulty, the hierarchy may issue a practical judgment on conduct. These principles are nothing other than the conditions set by theologians and philosophers for the liceity of resistance to injustice. They also require: a) that the injustice be grave, prolonged, and evident; b) that no more effective means are available; c) that success is probable; d) that greater evils are not to be foreseen; e) the judgment of opportunity belongs to enlightened persons, and in the religious sphere the injustice must be judged by ecclesiastical authority; f) that honest means be used. In theory, therefore, the solution is affirmative regarding the liceity of resistance; in practice, the decision to resort to it depends on historical and environmental circumstances.

Under certain circumstances, material cooperation with regimes issuing unjust laws and their execution is licit. This was practically suggested during the French Revolution (Pius VI), 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. Penal Laws

The primary 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 in the matter imposed and in the will of the legislator; thus there is grave and light obligation, purely moral, purely penal, and mixed. Moral law creates an obligation in conscience before God; its violation constitutes a theological fault (sin), punishable by God with temporal or eternal penalties. Purely penal law obliges only to undergo, in case of violation, the punishment that may be inflicted. Mixed law is moral law, accompanied by 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 imposed penalty is of its nature moral (in conscience).

### Nature of Penal Law and Related Theories

The nature of penal law is variously explained. Some say it is a disjunctive obligation: the legislator, that is, leaves the subject free to choose either obedience to the law or the penalty. This theory was in vogue at the end of the last century, but it has the defect, at least in its external form, of suggesting that the legislator is indifferent to the subject’s decision, whereas in fact he desires obedience to the law. Others explain purely penal law by the theory of obligation that is merely juridical or civil (seemingly already enunciated by Billuart, and now attracting greater sympathy): the legislator considers it sufficient that the subject be bound to the law only in the external forum; transgression therefore directly constitutes a juridical fault, for which one must render account only to society; indirectly, it obliges in conscience to undergo the inflicted penalty. This better accords with the concept of law and the legislator’s intention.

The first example of the introduction of penal laws dates to the constitutions of the Dominicans, in the form drawn up by the General Chapter of 1236: the Constitutions were then imposed *sub poena*. The reason adduced by commentators was that religious souls, amid the variety of prescriptions, would not often find occasion for sin. Henry of Ghent restricts the doctrine of purely penal laws to laws that have indifferent matters as their object, but he transferred it also into the civil sphere. 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 bind in conscience. A foundation was found (from St. Raymond onward) in the assistance of the glossators, passed with some modification into the 23rd *regula iuris* in the *Liber Sextus*: “Aliquis punitur quotidie iuste et licite sine culpa, sed non sine causa.” William of Rennes applies the doctrine to taxes, fines, and corporal penalties. The *Summa Angelica* of Angelo da Clavasso, while adopting Henry of Ghent’s theory with some imprecision, spread it widely, though it was somewhat contested by the *Summa Sylvestrina* (of Sylvester Prierias). But the great theorist of the doctrine of penalties was, with his work *De potestate legis poenalis libri duo* (Salamanca 1550), the Franciscan Alfonso de Castro (1495–1558). St. Robert Bellarmine opposed the theory; but with Suárez (*De legibus*, Coimbra 1612, I, V, ch. 3 ff.) the theory was definitively affirmed without opposition, except among two or three authors at the beginning of our own century.

The reasons for this position are manifold:
a) He who can do the more can certainly do the less; if the legislator can impose an obligation in conscience, there is no difficulty in his imposing a lesser obligation when this depends on his will;
b) All agree that the legislator can impose a matter that is grave in itself under a light obligation; it is not repugnant that he should be satisfied with an imperfect mode of obligation. It is true that every law must have its sanction; but in matters that are merely useful to the common good, the authority that can choose one law rather than another can likewise prefer one sanction to another when it is thereby able to achieve the law’s end equally well;
c) Here, indeed, the external obligation is not denied; it is certainly sufficient in a society where the individual must answer for his actions in the external forum alone;
d) The end of the law is perhaps attained more effectively, since fear is more efficacious for many than 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 achieve, for which a single civil obligation suffices; in the exigency of a better distributive justice that demands equal burdens for all; in the duty of superiors to avoid, as far as possible, the dangers of sin for their subjects; and in the modern mentality that conceives civil society as sufficiently defended by a merely civil obligation of the law, which no longer rests on ethical and religious elements.

### Existence of Penal Laws

Divine law (both natural and positive) contains only moral laws. The Church, founded for the specific purpose of the ultimate spiritual good of the faithful and as the dispenser of supernatural means of sanctification, often lacks external coercive means or is disinclined to use them; it has within itself all the motives to bind in conscience by its laws, and ordinarily does so, except where matters are secondary or norms are purely directive. Official confirmation of this is found in the decree of the Sacred Congregation of Religious that approved the statutes for the Sisters of the Sacred Heart (16 July 1931: *AAS*, 23 [1931], p. 380), where no. 125 states: “What is contained in these statutes, drawn from the Code of Canon Law or other ecclesiastical laws, binds the sisters’ consciences in such a way that they cannot be violated without fault.”

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 vows or the foundations of the respective institute (cloister, choral office, etc.), except where contempt or scandal is involved, have the force only of penal laws (though in concreto, violation may be a sin depending on circumstances). An exception is the Franciscan Rule (3, V, 12, in *VI*; 1, V, 11, in *Clem.*); for the Discalced Carmelites, the Rule obliges under penalty of venial sin (*Constitutiones*, no. 4).

Civil laws that sanction divine law, that determine generic natural law, and in particular touch commutative justice or morality, bind in conscience, as the common good requires. Similarly, other laws that, in the judgment of upright and competent persons, induce a moral obligation; for example, in time of public emergency, laws relating to the security of the nation, to the price—supposedly just—of essential goods, to the rationing of products; in case of an oath, certain labor laws. Within certain limits, direct taxes are considered obligatory in conscience; and under certain conditions, military service. In the same sphere there may be different obligations; thus the prohibition of hunting without a permit is considered penal, whereas the prohibition against children carrying weapons below a certain age is considered moral.

Moralists assign criteria for recognizing penal laws:
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 disproportionate to the fault;
4) The matter itself, if the law touches indifferent matters in the sphere of morality (cleanliness, traffic regulations, etc.). Nevertheless, contempt of authority or scandal may constitute grave fault, as may attempted corruption of public officials.

In case of doubt, *quod minimum tenendum est*. Nonetheless, in principle, due reverence must be shown to authority by observing its laws.

In civil law, irritant laws—distinct from merely prohibitive laws or those that deny civil action in certain matters (e.g., Italian Civil Code, art. 1933)—warrant particular consideration regarding their binding force in conscience. Broadly defined, irritant laws are those in which an impediment to the efficacy of a legal transaction may arise. These defects, which hinder the attainment of the purposes for which the transaction is intended, can be grouped—or may be grouped—into several categories. With particular reference to Italian civil law, a law may, to a greater or lesser degree of severity, declare the nullity, annullability, rescission, or resolution of a transaction. Setting aside the last of these, which arises from a defect in the life of the relationship rather than from a direct flaw in its formation, we are left with three gradations of invalidity.

The most severe form of invalidity is nullity: a transaction declared null by law is, in effect, as if it had never existed, due to the absence of essential requirements (cf. Italian Civil Code, arts. 1418 et seq.). The second form is annullability, whereby the act exists and may even produce its effects, but a party is granted the faculty to seek its annulment, thereby retroactively eliminating its legal consequences (cf. Italian Civil Code, art. 1425 et seq.). The third form, rescission, leaves the transaction valid under law but subject to rescission, with a result closely resembling annulment. The basis for rescission lies in the violation of a principle of substantial justice and equity (cf. Italian Civil Code, arts. 1447 et seq.). In cases of simple rescission, theologians commonly hold that, in conscience, the act so affected by the law is to be considered valid until the judge’s sentence, though a request for rescission may still be made; naturally, one must then abide by the judge’s decision, even in matters of conscience.

Regarding the binding force in conscience of laws that declare an act null or annullable, the opinions of theologians may be grouped into three classes: a) some hold that such laws, being determinative of rights, are valid in conscience and thus irritant to the act even in the ethical sphere, prior to the judge’s sentence (cf. I. Bouquillon, *Theologia moralis fundamentalis*, 3rd ed., Bruges 1903, p. 474). b) Others regard such laws as purely penal and thus binding in conscience only after the judge’s sentence (cf. Seraphinus a Loiano, *Institutiones theologiae moralis*, II, Turin 1937, p. 18). c) Still others maintain that irritant laws leave naturally valid acts fully intact in conscience until the judge’s sentence, unless it is certain that the legislator’s contrary intention is based on a genuine exigency of the common good (cf. E. Génécot-I. Salsmans, *Institutiones theologiae moralis*, 13th ed., I, Brussels 1936, pp. 511 et seq.).

In practice, given these differing perspectives, prior to the judge’s sentence, an