Moral Theology. Charles J. Callan
Human laws are necessary. The Natural Law does not prescribe definite penalties, while the Positive Divine Law prescribes only such as are remote and invisible; and hence, if there were no human laws holding out the threat of determined and present punishments, the Divine laws would be contemned. Moreover, since the higher laws are sometimes unknown, or prescribe no time, place or manner of accomplishment, or do not command things that would be useful for their observance, it is necessary that there be laws made by man to secure the better knowledge and fulfillment of the laws given by God Himself.
376. A human law is unjust in two ways:
(a) if opposed to the rights of God. Examples: The command of Pharaoh that the Hebrew male children be murdered (Exod., i. 17), the command of Antiochus that his subjects sacrifice to idols (I Mach., ii. 16–20), the command of the Sanhedrin that the Apostles should cease to preach (Acts, v. 29);
(b) if opposed to the rights of man. This happens in three ways: First, when the purpose of the law is not the common good, as when the lawgiver seeks only his own profit or glory; secondly, when the maker of the law has not the requisite authority; thirdly, when the law itself, although for the common good and made by competent authority, does not distribute burdens equally or reasonably among the people. Examples: Achab and Jezabel, in the affair of the vineyard of Naboth, had in view not the public, but their own private benefit (III Kings, xvi). The sentence of death pronounced on our Lord by the Sanhedrin was illegal, because, among other reasons, the body was not assembled according to law, and hence had no authority to give sentence. The commands given the Israelites by Pharaoh (Exod., v. 18), and to their subjects by Oriental despots (I Kings, viii), were unjust, because the former discriminated against the Israelites, and the latter bore down too heavily on all the people. The former civil laws that prescribed the same penalty of hanging for a slight misdemeanor (such as the theft of a loaf of bread by a boy) as for the capital crimes of piracy or murder, the Stamp Act of George III, and some modern laws that sentence to life imprisonment those who have been four times convicted of slight offenses, are more recent examples of unjust laws.
377. Obedience to unjust laws is not obligatory in the following cases. (a) If a law is opposed to the rights of God, it is not lawful to do what that law commands or permits, nor to omit what it forbids. Examples: If a law permits one to practise polygamy, or commands one to blaspheme religion, one may not use the permission or obey. If a law forbids one to give or receive Baptism, it has no force. (b) If a law is certainly opposed to the rights of man in any of the three ways mentioned in the previous paragraph (376, b), it does not of itself oblige in conscience, since it lacks some essential condition of a true law, and even the consent of the majority or of all does not make it just. However, it may oblige accidentally, on account of the greater evils that would follow on disobedience, such as scandal, civil disturbances, etc. The duty of subjects is to remonstrate against such a law and to work for its repeal.
378. The obligation of all laws is not the same in kind, or degree. (a) Moral laws oblige one to do what is commanded or to omit what is forbidden, as a duty owed in conscience; hence, he who violates a law of this kind is guilty of moral fault. Penal laws oblige one to follow what they prescribe, if one would be free from guilt before the law and not liable in conscience to the penalty prescribed; hence, he who violates a penal law is guilty of juridical fault, and, if he further illegally resists the penalty, he becomes guilty also of moral fault. (b) Moral laws are not all of the same obligatory force, some of them obliging under grave sin, others under venial sin.
379. The following human laws are recognized as moral laws: (a) ecclesiastical laws, with few exceptions; (b) civil laws that confirm the Eternal or Divine Law, or that pertain directly to the common welfare, such as the laws that determine the duties of public officials, the rights of inheritance, etc.
380. The following human laws are generally regarded as merely penal: (a) ecclesiastical laws which expressly state that their observance is not required under pain of sin (e.g., the statutes of many Religious Orders); (b) civil laws of minor importance, or which the legislator imposes as a purely civil duty (e.g., some traffic regulations).
381. Moral laws oblige under grave sin if the two following conditions are present: (a) if the thing prescribed by the law is of great importance, because of its nature or circumstances; (b) if the lawgiver intended to impose a grave obligation.
382. A matter of light moment cannot be made the object of a law that binds under grave sin, for this would impose an intolerable burden, and would thus be contrary to the common good. What is unimportant in itself, however, may become important on account of its purpose or other circumstance.
383. The intention of the legislator to impose a grave moral obligation is recognized either: (a) from his own declaration, as when a church law is commanded under threat of the divine judgment; or (b) from circumstances that indicate such an intention, such as the gravity of the subject-matter of the law or the kind of penalty it prescribes, the general opinion of authorities, or the common practice of the community.
384. By obliging to the observance of what they command and the avoidance of what they forbid, laws indirectly oblige to what is necessary for such obedience. (a) Hence, the law obliges one to make use of the ordinary means for its fulfillment. Examples: He who has not used ordinary diligence to know the law, sins against the law if he violates its prescriptions. He who eats meat on a day of abstinence, because he neglected to provide himself with other food, is guilty of sin. (b) The law obliges one to use sufficient diligence in removing impediments to its fulfillment or dangers of its violation. Examples: The law of hearing Mass on Sunday obliges one not to stay up so late on Saturday that fulfillment will be impossible. The law of fasting obliges one to avoid dangerous occasions of its violation.
385. Interpretation.—Though laws are carefully framed as to language, doubts about their meaning will often arise—in ordinary cases, because of lack of understanding or changes of conditions, and in extraordinary cases, because from the circumstances the law seems inapplicable. Hence the need of explaining the law, which is done in ordinary cases by interpretation, in extraordinary cases by epieikeia (see 411 sqq.).
386. Interpretation is a genuine explanation of the law, that is, one that states the meaning of the words of the law according to the intention the lawgiver had in mind when he chose them. It is of various kinds.
(a) According to the author from whom it proceeds, interpretation is authentic, if it comes from the lawgiver himself or from another authorized by him; it is usual, if it comes from common usage (i.e., from the manner in which the law is customarily observed); it is doctrinal, if it is made by learned men according to the rules of correct exegesis,
(b) According to the effect, interpretation is declarative, if it clears up what was obscure in the law; it is supplementary, if it extends or limits the law, by adding to or subtracting from the cases included under it.
(c) According to the manner in which it is made, interpretation is strict or wide, Strict interpretation gives to a word of law that least inclusive and most proper signification it bears (e.g., it understands "son" to stand for son by birth). Wide interpretation gives to a word a more inclusive and less proper signification (e.g., it understands "son" to stand for son by birth or by adoption).
387. Those Subject to Law.—Only those are morally obliged to observe human law who are subjects of the lawgiver and who have the use of reason. (a) Those who are not subjects in any sense are not bound, for to obligate by law is an act of authority and jurisdiction; (b) those who have not reached the age of reason, or who are habitually insane, are not themselves morally bound, since they are incapable of moral obligation. Of course, they may be restrained as to acts, and their rights may be determined.
388. The lawgiver himself, even though not subject, is held to observe the laws he makes. Thus: (a) if the lawmaking power resides in a legislative assembly, each legislator is subject to the body and hence to its laws; (b) if the lawmaking power is vested in an individual, he is not subject to the coactive force of his own laws, since he cannot punish himself; but he is subject to their directive force, inasmuch as the higher law of nature requires that the superior show good example by observing what he requires of others.
389. Change of Law.—The growth of knowledge and experience,