Moral Theology. Charles J. Callan
enacted as penal, or is prudently regarded as such—as is the case with laws that are of minor importance or that can be enforced without a moral obligation—laws useful rather than necessary; (b) when the law is merely irritant or inhabilitating, the subject is not obliged to omit the act invalidated, but only to suffer the consequence of nullity before the law.
556. In doubt as to the obligation of a law, what is the duty of the subject? (a) If there is doubt concerning its justice, the subject can always observe it with a safe conscience. One may obey an unjust law, until it is judicially declared unjust, if it is not manifestly opposed to divine or human rights. (b) If there is doubt whether a law obliges under sin or not, the subject does not sin directly by non-observance (see 375, 376, 377, 561).
557. Special Kinds of Laws.—Laws that determine ownership are those that define in distinct and explicit terms the rights of citizens as to property, in such matters as goods lost or found, prescription, inheritance, copyright, distribution of property of intestates, rights of wives, capacity of minors, contracts, etc. It is commonly held that these laws are obligatory under sin, even before judicial decision: (a) because they are determinations of the natural law made by the authority that represents God in matters temporal; (b) because they are necessary for the peaceful existence of society.
558. Irritant or voiding laws are those that deprive certain acts of legal value. The common welfare requires that certain acts, even if valid naturally, may be made invalid by the State (e.g., contracts entered into by minors, donations made under fear, wills devised irregularly), and hence there is no doubt that the effect of invalidation can be imposed under pain of sin.
(a) This holds even before judicial decision, if it is clear that the lawgiver ought to intend and does intend to deprive an act of its moral validity from the beginning. Example: If a lawsuit would put one party (e.g., a minor) under great disadvantage, the law can irritate a contract in conscience and before judgment is rendered.
(b) An irritant law does not oblige under sin before declaration of nullity, if it is not clear that the legislator intended this; for it can be presumed that the State is content with external means as long as these are sufficient for its ends; and, since invalidation of acts is odious, it calls for certain expression of his intention by the lawgiver. But after sentence has been given, that which is civilly null is also null morally. Hence, if the courts declare a will to be of no effect, because it was not drawn legally, the decision is binding under sin.
559. Civil lawgivers in modern times do not, as a rule, concern themselves with moral or natural obligation as such, but rather consider only what regulations will best promote the peaceful intercourse of society. Hence, the question whether a civil irritation obliges in conscience ipso facto (i.e., before judicial declaration of a case) has to be decided generally, not from the words, but from the purpose of the law.
(a) An irritant law should be regarded as obligatory ipso facto, when the general purpose of law (viz., the common good) or the specific purpose of this law requires that there should be obligation in conscience even before a court decision. Examples are laws irritating agreements to do what is illegal, laws whose purpose is to protect minors or others who would be at a disadvantage in case of litigation, or to lessen the number of cases before the courts.
(b) An irritant law should be regarded as not obligatory ipso facto, when the end of the law does not clearly demand obligation before judicial declaration; for, as remarked above, the invalidation of an act is something odious, and hence not to be taken for granted. Thus, laws that void an act, contract or instrument on account of lack of some legal form, do not affect the natural rights or obligations before sentence.
560. Though the civil lawgiver has the right to annul certain acts, and thus to extinguish moral rights or obligations that would otherwise exist, laws seemingly irritant frequently have a different intention.
(a) Laws that make a claim unenforceable in court do not destroy the natural right of the claimant. Example: The Statute of Limitations in modern states generally bars the right to pursue a debtor in court after six years; nevertheless, the moral obligation of the debtor remains.
(b) Laws that make an act or contract voidable do not nullify, but only grant to the person concerned the right to attack validity before the courts. Hence, if the conditions for valid contract required by natural law are present (knowledge, consent, etc.), moral rights and obligations are not voided. Example: Under the civil law some contracts made by minors may be retracted by them. But, as long as such a contract is not disavowed, the other party has a moral right to insist on its execution; if it has been ratified after majority, the former minor has no moral right to seek the benefit of the law by asking for rescindment.
561. With reference to penalty, four kinds of laws can be distinguished.
(a) Purely preceptive laws are such as oblige under pain of sin, but not under pain of punishment. There are church laws of this kind (such as the command to assist at Mass on Sunday), and there are also some civil laws that do not oblige under penalty (e.g., statutes governing the age for legal marriage, for, if a couple misrepresented their age, they might be prosecuted for the misrepresentation, but not for the act of marriage).
(b) Purely penal laws are such as oblige under pain of juridical fault and punishment, but not under pain of sin (e.g., a law that punishes negligence in driving as defined by itself, even though there be no moral culpability involved).
(c) Mixed laws disjunctively are such as oblige under sin either to obey the law or to suffer the penalty (e.g., a law that commands one either to get a license before fishing or hunting, or to pay a fine if caught doing these things without a license).
(d) Mixed laws conjunctively are such as oblige under pain of both sin and punishment (e.g., the laws that forbid injustice and command the punishment of transgressors).
562. There is no question about the existence of laws of the first and fourth classes just described, but some authorities argue against the existence of the other two classes, maintaining that a law that does not oblige in conscience is an impossibility. They argue: (a) the teaching of scripture and of the Church supposes that all just laws oblige in conscience; (b) the lawgiver holds the place of God, and hence one cannot offend against the law of man without offending God; (c) human law, being only a reaffirmation or determination of the higher law, obliges in conscience like the law on which it is based; (d) directions of a superior that do not oblige under sin are counsels rather than laws.
563. To these and similar arguments the defenders of the existence of penal laws reply: (a) such laws do not oblige in conscience, under pain of sin and of offense to God, to do or to omit as the law prescribes, just as a vow which gives one the option of not playing cards, or else of giving each time an alms, does not bind one in conscience not to play cards; (b) but those laws do oblige one in conscience to respect their juridical value, not to resist their enforcement, and to pay the penalty of violation, just as the vow mentioned obliges one in conscience to give an alms each time one plays cards. The Church recognizes penal laws (see 450), and there is no reason why civil law may not be penal.
564. Even when the transgression of a purely penal law is not sinful by reason of the civil law, it will frequently, if not usually, be sinful by reason of repugnance to the law of God. Thus: (a) the transgression will be sinful, if there is a wrong intention (such as contempt for the law) or wrong circumstances (such as culpable neglect or some inordinate passion); (b) the transgression will be sinful, if one foresees or should foresee evil consequences, such as scandal (see 96).
565. It is generally admitted that some civil laws are purely penal, since they impose penalties for fault, negligence, or responsibility that is only juridical at times. Examples: A law that imposes a fine on all motorists caught driving over a certain speed limit, even though they be free of moral guilt; or that makes the owner of a car pay damages for injuries caused while it was used by his chauffeur.
566. Even these laws oblige under sin to some extent. (a) The transgressor is morally bound to the penalty prescribed by law, after sentence has been passed; and such penalties are just, for the common good requires them. Example: The speed violator is held to pay the lawful fine when it has been imposed. He may have been guiltless of sin, but