LICITNESS. - Liceity is synonymous with the correspondence of a behavior to a type expressed in a rule.
I. JURIDICAL LAWFULNESS
When one speaks of lawfulness in juridical language, one means to indicate that a determinate act corresponds to the positive law commanding, prohibiting or permitting, or takes place in the absence of precept or prohibition in the juridical field.
Bearing in mind that a juridical act is an act of free will both of private individuals and of the State and of lesser public bodies, directed at bringing about repercussions within the sphere of social relations governed by the positive juridical order and therefore at producing juridical effects, one may affirm that lawfulness is a concept that serves to indicate the conformity of an act to the positive norm, whereby the act represents the unfolding of the initial juridical situation; if instead the act pursues a deviation from the initial juridical situation, that is, is contrary to the positive norm, the positive order disapproves of it and represses it. In the first case the juridical act is lawful, in the second unlawful.
One may also affirm that the positive juridical order, insofar as it is the structure of a social organization, insofar, that is, as it prescribes duties and attributes rights, delimiting the sphere of free action of individuals and of collectivities, is legality: freedom subject to the norm. To this legality no one is lawfully permitted to make attempt, whether in the sense that one may, without being punished, invade the sphere of another's freedom or hinder its practical realization, or in the sense that one is permitted to take justice into one's own hands even when having right on one's side. Nevertheless, exceptionally, the individual is recognized as having the power of self-protection, e.g., within the sphere of the Italian positive juridical order, the right of retention (arts. 1151, 535, 1006, 1011, 975, 2994 para. 1, 2794 second para., 2761, 2040, 748 para. 4, Civil Code), of unilateral withdrawal (art. 1373 Civil Code), of forfeiting the deposit (art. 1385 Civil Code), of suspending performance of the obligation (art. 1461 Civil Code), of giving formal notice to perform (art. 1454 Civil Code), not to do (art. 896 Civil Code) and so on.
II. LEGAL LAWFULNESS AND MORAL LAWFULNESS
But not every juridical licitness is also a moral licitness. To realize this, one must go back to the relations between morality and positive law. The latter considers only actions toward others within the sphere of social life and in relation to the bonum commune, and it considers them not from the side of the subject, but from that of the object, that is, formally in relation to others, unlike morality, which, even when it concerns itself with what is owed to others, always considers such a duty for its intra-subjective value, that is, in relation to one's own conscience and to God. The concept of juridical obligation therefore differs from that of moral obligation, and likewise the concept of the absence of juridical obligation, and hence of juridical licitness, differs from that of the absence of moral obligation, and hence of moral licitness. Juridical obligation directly reaches external conduct, making the subject directly responsible before society (in foro externo). Moral obligation goes further and formally binds the conscience, committing it directly toward God (in foro interno). It therefore often happens that what is juridically licit is not morally licit, because, although the subject has no juridical obligation for which he must answer before ecclesiastical or civil society, he nevertheless has a moral obligation for which he will have to answer before his own conscience and before God. This implies no contradiction between the two categories, but a simple distinction, inasmuch as juridical licitness denotes the absence of a bond or of an impediment to acting under the sole aspect of law, whereas moral licitness implies conformity to the norm also under the other aspects that law does not consider. To conclude: for an action to be morally licit it is not enough that it not be injurious to law and justice, but it is necessary that it not be injurious to any norm of the moral order (natural law, divine-positive law and ecclesiastical law, in cases of civil juridical licitness). Conversely, a morally illicit action is not for that very reason contrary to law and justice.
All this is naturally incomprehensible to other conceptions, which either tend to confuse morality with law, or on the contrary tend to separate them (Thomasius, Kant) or even to oppose them to each other (Fichte). Yes, the immediate and proper end of law is different, but not contrary to the ethical order, and the final convergence of law and morality comes about by virtue of the very principle on which law rests, so that, deriving from natural law and therefore from the ethical order, it cannot but tend objectively, as to an ultimate end, to the very end to which the ethical order is directed. From what has been set forth it further follows that every obligation arising for the subject from the positive juridical order must take account of the divine law, which is the necessary basis of moral obligation and therefore the foundation of the positive juridical order itself.
Therefore, for the State to be able to bring about a true and proper obligation of conscience, it is necessary that the content of its laws be in conformity with the divine laws, natural and positive, so as not to bind men to perform an action contrary to the laws of God.
When all this has been kept in mind, one can speak of a licit act in an absolute manner both in the juridical order and in the ethical order. And this is objective licitness.
Subjectively, licitness concerns what the conscience (norm of subjective morality) demands, prohibits or permits with certainty. If there is doubt, and practical doubt, about the licitness of the action, the action is no longer licit. The practical doubt must first be resolved according to the norms laid down by the moral systems (v. COSCIENZA; SISTEMI MORALI).