LICEITÀ. — L. is synonymous with the conformity of conduct to a type expressed in a rule.
I. LEGAL LAWFULNESS
When one speaks of l. in juridical language, one means that a given act conforms to the positive law, whether prescriptive, prohibitive, or permissive, or takes place in the absence of a precept or prohibition within the juridical sphere.Bearing in mind that a juridical act is an act of free will, whether on the part of private individuals or of the State and lesser public bodies, directed toward producing repercussions within the sphere of social relations regulated by the positive juridical order and thus toward producing juridical effects, it may be stated that l. is a concept indicating an act’s conformity to the positive norm, whereby the act represents the development of the initial juridical situation; if, on the other hand, the act pursues a deviation from the initial juridical situation, that is, if it is contrary to the positive norm, the positive legal order condemns and represses II. In the first case the juridical act is lawful; in the second, unlawful.
It may also be stated that the positive juridical order, insofar as it constitutes the structure of a social organization—that is, insofar as it prescribes duties and confers rights, delimiting the sphere of free action of individuals and collectivities—is legality: freedom subject to the norm. No one is lawfully permitted to violate this legality, whether in the sense of invading another’s sphere of freedom or obstructing its practical realization without incurring punishment, or in the sense of being permitted to take the law into one’s own hands, even when one is in the right. Nevertheless, by way of exception, the individual is recognized as having the power of self-help; for example, within the sphere of the Italian positive juridical order, the right of retention (arts. 1151, 535, 1006, 1011, 975, 2994 para. 1, 2794 second paragraph, 2761, 2040, 748 para. 4, Civil Code), unilateral withdrawal (art. 1373 Civil Code), the right to appropriate earnest money (art. 1385 Civil Code), to suspend performance (art. 1461 Civil Code), to serve notice to perform (art. 1454 Civil Code), to refrain from doing something (art. 896 Civil Code), and so forth.
II. LEGAL LICITNESS AND MORAL LICITNESS
Yet not every legally licit act is also morally licit. To understand this, one must refer back to the relations between morality and positive law. The latter considers only actions ad alterum within the sphere of social life and in relation to the bonum commune, and considers them not from the standpoint of the subject, but of the object, that is, formally in relation to others; morality, by contrast, even when it concerns what one owes to others, always considers such duty for its intrasubjective value, that is, in relation to one’s own conscience and to God. The concept of legal obligation is therefore different from that of moral obligation, just as the concept of the absence of legal obligation, and hence of legal licitness, differs from that of the absence of moral obligation, and hence of moral licitness. Legal obligation directly affects external conduct, making the subject directly responsible before society (in foro externo). Moral obligation goes further and formally binds the conscience, committing it directly to God (in foro interno). It therefore often happens that what is legally licit is not morally licit, because, although the subject has no legal 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 does not imply a contradiction between the two categories, but simply a distinction, since legal licitness denotes the absence of a constraint or 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. In conclusion: for an action to be morally licit, it is not enough that it be not injurious to law and justice; it must also be injurious to no moral norm whatsoever (natural law, positive divine law, and ecclesiastical law, in cases of civil legal licitness). Conversely, a morally illicit action is not for that reason itself contrary to law and justice.All this is naturally incomprehensible to other conceptions, which either tend to confuse morality with law, or instead tend to separate them (Thomasio, Kant), or even to set them in opposition to one another (Fichte). The immediate and proper end of law is indeed different, but it is not contrary to the ethical order, and the final convergence of law and morality occurs by virtue of the same principle upon which law rests; since it derives from natural law and therefore from the ethical order, it cannot fail objectively to tend, as toward an ultimate end, toward the very end to which the ethical order is directed. From what has been set forth it further follows that every obligation arising in the course of the positive legal order must take account of divine law, which is the necessary basis of moral obligation and therefore the foundation of the positive legal order itself.
Therefore, for the State to give rise to a true obligation of conscience, it is necessary that the content of its laws conform to 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 may speak of an act as absolutely licit both in the legal order and in the ethical order. This concerns objective l.
Subjectively, l. concerns what the conscience (the norm of subjective morality) certainly demands, prohibits, or permits. If there is doubt, and practical doubt, concerning the l. of the action, the action is no longer licit. The practical doubt must first be resolved according to the norms laid down by moral systems (v. COSCIENZA; SISTEMI MORALI).