Jacques Maritain Center : Elements of Moral Theology


§ 1. What is law?

Law is grounded in reason,

For law is the rule and measure of acts, commanding or forbidding them. But reason is the rule and measure of human acts, for it is reason's office to ordain man with respect to his end. Mere will without reason would not make the law, but rather injustice. Law is always ordained for the common good.

In practical reason, the first principle is the ultimate end and aim. Law, therefore, the rational rule and measure of conduct, must principally and especially aim at that. Now the ultimate end of human life is felicity or beatitude. This, therefore, is the special object of law.

And, again, since every part is ordained for the whole, and each man is a part of the community, law properly regards the common felicity. Properly speaking, then, no precept is law which has not relation to the common good. This, of course, does not exclude special aims and particular goods, but all must have the general good as the ultimate aim.

Who can make law?

Since it primarily regards the order for the common good, and since to ordain anything for the common good belongs either to the whole community or to their vice-gerent, the power of making law belongs either to the whole community, or to him who has charge of that community. For they to whom that end belongs have the right and duty of ordaining for the end.

In a certain way, you may say that each one is a law to himself, as participating in the rational law which regulates his life.

A private person can only admonish; but his admonition has not that co-active force which is essential to law. But the community or its vice-gerent has such force to compel obedience, or to inflict penalties for violated law.

The head of a family can lay down precepts for his household, but they are not properly laws, because that family is ordained for the good of the complete community, the state of which it is a part.

Promulgation is essential in law.

For as rule and measure it must be applied to what is regulated and measured by it. Hence, in order that law may obtain obligatory force, which is essential to it, it must be applied to the men whom it is to regulate. But such application is bringing it to men's notice, i.e. , promulgation. This, therefore, is essential for the validity of law.

From these four principles we may collect a definition of law; sc., Law is an ordination of reason with reference to the common good, promulgated by him who has the care of the community.

§ 2. Eternal law.

If the whole universe is directed by Divine Providence, the whole community of the universe is governed by Divine reason.

That very government of all things, existing in God as the Lord of the universe, contains the idea of law, and because the Divine reason conceives an eternal thought, such law must be called eternal. Not that the things governed are eternal, but they are foreknown and foreordained in that eternity.

As in every artificer preexists the idea of those things which are to be produced by his art, so in every governor preexists the idea of the order of those things which are to be done by those who are under his rule.

This is part of the idea of law. But God by His Wisdom is the founder of the universe, and the governor of all the acts and motions which are found in the individual beings of the universe. And as the thought of Divine Wisdom, by which all things were created, is the pattern or "idea" of all things that are, so the thought of Divine Wisdom, moving all things to their due end, is law. We define eternal law, therefore, as the thought of Divine Wisdom, directive of all actions and all motions. This one law directive of acts in order to the common good, gives unity to the multiplicity of species of things.

Do all know eternal law?

A thing may be known in two ways: in itself, or in its effects in which some similitude of it is found. One may not know the substance of the sun, but still may know its irradiation. So no one of men on earth can know eternal law, as it is in itself; but every rational creature knows it, more or less, according to some irradiation. For all knowledge of truth is a certain irradiation and participation of eternal law, which is incommutable verity. But all, in some way, know the truth, at least the general principles of the law of nature. But otherwise, some participate more, some less, in the knowledge of the truth, i.e., of eternal law. (See Rom. i. 20.) Although every one according to his capacity may know something of eternal law in the manner indicated above, none can comprehend it, for it is not totally manifested in its effects. It is not requisite, therefore, for such knowledge that the whole order of things should be known.

All laws whatsoever are based on eternal law.

Wisdom says (Prov. viii. 13), "By me princes decree justice." Law, as we have seen, is grounded in reason directive of acts to their end. But as in all ordered motions the power proceeds from the first mover, so in the administration of government the governing reason of the superior is derived to the subordinates. Since, therefore, eternal law is the Reason of the supreme ruler applied in governing the universe, necessarily all lower reason in subordinates is subject to that, is derived from eternal law. Hence all laws, so far as they participate in right reason, are based on eternal law. And S. Augustine well says (Lib. Arb. i. 6), "In human law nothing is just and legitimate which men have not derived for themselves from law eternal."

(1) What, then, shall we say of unjust laws? Human law is so far truly law as it agrees with right reason. But so far as it recedes from that, it is unjust, and is to be called oppression rather than law. And yet even in such injustice is preserved a semblance of law, on account of the authority from which the law (so-called) proceeds. For "there is no power but of God" (Rom. xiii. 1).

(2) Again; how, then, can S. Augustine say (Lib. Arb. i. 5) that "human laws rightly permit many things which are avenged by Divine Providence"? Is not eternal law the thought of that Providence? I reply that human law may permit some things, not as approving of them, but because it is unable to direct them. Many things are directed by Divine law which cannot be touched by human law. Hence, this non-interference of the latter is itself part of the order of law eternal. It would be very different if human law should approve what the other condemns.

To this eternal law are subjected all created things, whether necessary or contingent.

Herein is a wide difference between human laws and the law of God. For the former only extends to rational creatures, who can be subject to the community. For law directs the actions of those only who are subject to its government. Hence, no one, properly speaking, imposes a law on his own actions. But whatsoever things are done in using the irrational things which are subject to man, are done by the act of the man himself moving those things. Therefore man cannot impose a law on those irrational things, although they may be in his power. For they do not move themselves.

But as man may imprint on human minds his law with its precepts and warnings, so God imprints on all nature the principles of its proper acts. "He has given them law which cannot be broken" (Ps. cxlviii. 43). Thus all motions and actions of all nature are under eternal law; irrational creatures being moved by Divine Providence, but rational creatures knowing the law which governs them.

Even defects in natural things are subject to the higher laws of Providence, though they seem to be outside of the regular laws of the creature concerned in them.

All human affairs are subject to eternal law, though differently in the case of the good and of the bad.

There are two modes in which anything is subject to eternal law: one, by participating in it through knowledge of it; another, by action and passion. In this latter mode irrational creatures are subject to it. But rational creatures are subject in both manners. For they have some (imperfect) notion of it, and there is in them a natural tendency towards what is in harmony with that eternal law; for man is made for virtue (Nic. Eth., lib. ii.). But both these are corrupted in the wicked, the natural inclination to virtue being depraved by vicious habit, and the natural knowledge of good being obscured by passions and evil habits.

But in the good each mode is found more perfectly, because to the natural knowledge of good is superadded the knowledge of faith and wisdom; and to the natural inclination for virtue is superadded the inward motives of grace.

The spiritual are not under the law (Gal. v. 18), as a burden on them, because, through that charity which the Holy Ghost pours into their hearts, they fulfil the law voluntarily, and not unwillingly and through fear of the punishments which the law denounces on those who break it.

§ 3. The law of nature.

The rational creature in a peculiar manner is subjected to Divine Providence, inasmuch as it is a participator of that Providence in providing for itself and for others.

In itself it participates in eternal reason, through which it has a natural inclination to its due act and end. Such a participation of eternal law in a rational creature is called the "law of nature."

What does the law of nature command?

As being is what first falls under the notice of simple apprehension, so the good is what first comes to the notice of practical reason which is ordained for operation. Therefore the first principle of practical reason is, "The good is what all things seek." And the first precept of the law of nature is that "the good is to be done and sought for, and the evil is to be shunned." On this are founded all other precepts of the law of nature. The good has the idea of the end, and hence reason naturally apprehends as good all those things to which man has a natural inclination; and, consequently, they are to be actively sought for, while their contraries are evil and to be shunned. According, therefore, to the order of natural inclinations is the order of the precepts of natural law. And there is in man, first, the inclination to his own good according to his nature, in which he communicates with all beings, since each one after its manner seeks its own conservation. According to this inclination those things pertain to the law of nature by which the life of man is preserved and the opposites are hindered. ("Self-preservation is nature's first law.")

Secondly, there is in man a natural inclination to some more special things in which he communicates with other animals. In this way those things are of the law of nature which nature teaches all animals, as the propagation of the species, the bringing up of children, and the like.

Thirdly, there is in man a natural inclination to rational good, which is peculiar to him. And thus man has a natural desire to know the truth concerning God, and to live in society with his fellows. And so to natural law pertains that man avoid ignorance, that he do no harm to those with whom he is to associate, etc.

Are all virtuous acts part of the law of nature?

Certainly everything to which man by nature is inclined pertains to the law of nature. But that natural inclination is to act according to reason, which is all one with acting according to virtue. In this way all virtuous acts are according to the law of nature. But if we consider the separate acts of virtue, we perceive that many things are virtuously done to which nature does not at first incline, but by rational search they are found useful for a virtuous life. Some acts are virtuous in certain persons, according to their condition and state of life, which would not be so in others.

Is the law of nature one law among all men?

To the law of nature, as we have seen above, pertain all those things to which man is naturally inclined, among which, peculiar to man, is the acting according to reason. But reason proceeds from general principles to special deductions from them, while practical reason is concerned with contingent things, among which are human operations. And therefore, while those universal principles may be necessary ones, as we descend to particular inferences we are liable to find deficiency. In speculative principles which deal with necessary truths, the truth is the same among all men, both in its first principles and in the deductions from them, though the conclusions are not equally known among all. But, in practical matters, there is not among all the same truth or practical rectitude in special inferences, but only in the general principles. And where there is the same rectitude in special applications of first principles, it is not equally known by all. So, then, as respects the general principles of reason, whether speculative or practical, our answer to the question is, that there is one verity or rectitude among all and equally known by all. But as regards the special conclusions of speculative reason, there is the same verity among all, though not equally known by all. Thus, among all it is true that the sum of the three angles of a plane triangle is equal to two right angles, though this is not known by all. But as respects the special conclusions of practical reason, there is not the same verity or rectitude among all, nor, even where it is the same, is it equally known by all. For among all it is right and true that they should live according to reason. But from this principle it is plain deduction that a loan should be repaid. And this is true in most cases. But it might happen that doing so would be doing harm, and consequently irrational (e.g., a drunken man's revolver; or if the loan were going to be used against the country of the parties concerned). And the more we descend to particulars, the greater the contingency in the conclusions, as if, say, that the loan be returned in such a manner or on such a day. The more particulars are specified, the more multiplied are the possibilities of defect making it not right to return the loan under those conditions. So, then, we assert that the law of nature is the same among all in its primal general prinmples, both for rectitude and for knowledge of it. But for inferences from those principles, it is generally the same, though in some cases there may be deficiency both in rectitude and in knowledge. And this because some have reason depraved by passion, or bad customs, or evil constitution of nature.

Can the law of nature be changed?

Something may be added to it; nothing hinders its being changed in that way. And many things beneficial to human life have been superadded both by Divine law and by human laws. But if we speak of subtracting anything from the primal principles of the law of nature, and so changing it, it is altogether immutable. But if we speak of secondary deductions from it, special impeding causes may rarely occur which release from the obligation of such precepts.

Can the law of nature be expelled from the hearts of men?

If we mean those general principles of living which are known by all, those cannot be expelled from the mind. But if we have in view practical applications of them, reason may be hindered in making them by concupiscence or other passion. And, again, if we refer to remoter deductions from those first principles, the law of nature can be expelled through evil persuasions, or depraved customs, and corrupt habits.

§ 4. Human law.

What is human law?

As in the case of speculative reason, from indemonstrable principles intuitively known are produced the conclusions of various sciences which are not innate but discovered by processes of reasoning, so also from the precepts of natural law, as from general and indemonstrable principles, reason proceeds to order the special details of human life. These special orderings so derived are human laws, under the conditions specified for law in general.

This practical reason being directed to individual and contingent things (viz., actions), cannot give to laws that infallibility which belongs to the conclusions of demonstrative sciences. The measure, therefore, of human acts provided by human laws is not altogether fixed and infallible, and the approach to this is to be sought for only under the necessary limitations.

The utility of human laws.

Though there is in man by nature a certain aptitude for virtue, yet man must reach the perfection of virtue by some discipline. So we see that in natural needs, as food and clothing, man has the natural provision of reason and hands, but must aid himself by his own art and industry, while other animals are better provided by nature.

But for this discipline in right living, man is scarcely sufficient for himself, because the perfection of virtue consuts in withdrawing him from undue gratifications of his passions, to which he is very prone. Youth especially needs this efficacious discipline. This discipline, therefore, must come from without. And paternal discipline may suffice in youth where there is disposition for the acts of virtue either from natural character, or from habit, or, rather, from Divine bounty. But because some are found who are "headstrong" and prone to vice, and not easily moved by admonition, it is necessary that they be restrained by force or fear, that they may both leave others to pass a quiet life, and by force of habit may themselves be led to do voluntarily what they began to do through fear, and so may become virtuous. But this discipline, compelling the vicious through fear of punishment, is the discipline of laws. Hence human laws are necessary for the peace and virtue of men. "Man when perfected is the best of animals, but when separated from law and justice, he is the worst of all" (Arist., Pol. i. 2,); because he has the arms of reason to expel concupiscences and ferocities, which other animals have not.

(1) It is true that well-disposed men are better led voluntarily by admonition than driven by force; but there are also those who cannot be so led and must be compelled.

(2) But why not leave all such matters to the arbitrament of upright judges? Is not living justice in that form better than inanimate justice under the name of laws? There are three reasons why law is preferable (a) It is easier to find the few skilful legislators than the many upright judges who would be needed for all the separate cases of judgment; (b) the law-makers have abundant time for reflection on all the various cases which may come under the scope of the law, while judgments in individual cases must be given more or less "off-hand;"{1} (a) legislators judge in the general and of the future; in the other case, men judging of the present are liable to be affected by love or hate or some cupidity and so their judgment may be depraved. Because, therefore, the animated justice of the judge is not found in many, and because it is liable to swerve from the right, it is necessary that in as many cases as possible law determine what is to be judged, and that the fewest possible things be left to the discretion of the judge.

(3) Human acts are countless in detail, and we admit that there are endless details which law cannot reach, say, whether the act charged has been committed or not. Many things, therefore, must be left to judge (and jury).

Is human positive law derived from the law of nature?

That is not truly law which is not just. So far as a statute has justice, so far it has the force of law. But in human affairs that is just which is right according to the rule of reason, and reason's first rule is the law of nature. Therefore, every law made by man has so far the nature of law as it is derived from the lex naturae. But if in any respect it is discordant from that, it will not be truly law, but a corruption of law.

But this derivation may be in two ways (1) from the general principles of the law of nature conclusions may be drawn. "Thou shalt do no murder," is a conclusion drawn from the lex naturae, "thou shalt do no harm to any one." (2) Determinations may be made of the same law of nature; e.g., since it requires that he who does the wrong shall be punished, the law of nature may be determined by human positive law in fixing the punishment as this or that. The former are not merely positive laws, but derive some force from the lex naturae. The latter are purely positive laws, and rest on human enactment only. (They may order or prohibit what is in itself indifferent.){2}

The first give us "jus gentium," laws which are requisite in every organized community; the second, "jus civile," laws which vary according to the different conditions of human society.

Human laws should be general, not individual "privilegia."

The end of the law is the common good, and must be proportioned thereto. But the common good consists of many things, and the law, therefore, must regard that many, both as respects persons, and actions and time. For the community is composed of many persons, and its good is derived from manifold actions, and it is established for a permanent duration.

It does not pertain to human law that it prohibit all vices.

The measure should be homogeneous with what it measures. Now, law is the rule or measure of human acts. Therefore it should be imposed upon men according to their condition. It should be possible, and according to nature and the custom of the land. Now, the power of action proceeds from interior habit or disposition; for the some things are not possible to him who has not a habit of virtue and to the virtuous, nor to the boy and to the grown man. Many things are permitted to boys which are denounced in adults and punished by law. And, similarly, many things are permitted to men of imperfect virtue which would not be tolerated in virtuous men. But human law is made for the multitude, the majority of whom fall far short of the standard of perfection. Therefore all vices from which the virtuous abstain are not prohibited by human law, but only those graver vices from which it is possible for the greater part of the multitude to abstain, and especially those vices which injure others, and without the prohibition of which human society could not subsist; as homicide, theft, and the like.

Human law must aim to make men virtuous, not by a sudden leap, but gradually. On the imperfect multitude it would be useless and worse to impose a burden which they could not bear, but, casting it off, would fall into greater evils (of license and lawlessness). The new wine of the precepts of a perfect life must not be put into the old wineskins of imperfect men, else the skins burst, and the wine is spilled; i.e., the precepts are contemned, and through contempt men rush headlong into greater evils.

Neither does human law enjoin the acts of all virtues.

All the objects of virtues can be referred either to the private good of some person, or to the common good of society. Thus the acts of courage can be directed either to the preservation of the state, or of the rights of a friend. But law is ordained for the common good, and therefore there is no virtue whose acts the law might not enjoin. But yet human law does not give order concerning all acts of all virtues, but only concerning those which can be ordered for the common good, either directly or mediately, as having reference to that good discipline by which the common good of justice and peace is preserved. (Qu.: The closing of liquor "saloons" on Sunday?)

Note that an act may he called virtuous in two ways: (1) it is viewed simply as an act external to the will; thus it is an act of justice to do right things, and an act of courage to do courageous things; and so the law enjoins some acts of virtue; (2) an act is called virtuous because it is done as a virtuous man does it (out of a good heart); such acts proceed from virtue, and do not fall under the prescription of law. But they should be the law-giver's aim.

Does human law impose obligation on conscience?

Laws enacted by man are just or unjust. If they are just, they oblige in foro conscientiae, by reason of the eternal law from which they are derived. (Prov. viii. 15.) But laws are called just both from the end, sc., when they are ordained for the common good, and from their author, when the law enacted does not exceed the legislator's authority; and from their form, when burdens are laid upon those subject to the law in due equality of proportion in order to the common good. Each man is part of society, and is what he is, and has what he has, as such a part. Laws, therefore, which impose burdens in due proportion are just, and oblige in foro conscientiae; they have the true idea and form of law.

But laws may be unjust in two ways: (1) they may be opposed to the common good in either of the three points just named -- either (a) in their end, when the law-maker imposes onerous laws, not pertaining to the common good, but rather for his own interest or ambition; (b) when he issues a law beyond his authority to enact; (c) when unequal burdens are laid upon the members of the community, even though they be ordained for the common good. These are rather acts of oppression than laws. "That does not appear to be law which is not just" (S. Aug., Lib. Arb. i. 5). Hence such laws do not oblige in foro conscientiae, except, perhaps, for avoiding scandal and disturbance (the lex naturae comes in prohibiting such scandal or riot); on account of which a man ought to yield his right, according to the Gospel law (S. Matt. v. 41), "If any man would go to law with thee, and take away thy coat, let him have thy cloak also."

(2) In another way laws may be unjust through opposition to Divine good, as laws of tyrants in former ages compelling idolatry, and, in our age, whatever is against Divine law. Such laws it is not lawful in any manner to observe : "We ought to obey God rather than man" (Acts iv. 19; v. 29).

But how can the lower power which enacts human law impose obligation before that Divine tribunal which we call our conscience? The Apostle replies (Rom. xiii. 1), "There is no power but of God, and the powers that be are ordained of God; therefore he that resisteth the power" (in those things which pertain to it) "withstandeth the ordinance of God." And this makes him guilty before the bar of conscience.

How are all under law?

Law is not merely the rule of human acts; it has (as such) co-active force. As regulated in action by law, all are under it who are under the authority which enacts it, though higher authority by its dispensation may release from the laws of lower authority (e.g., State law and national law). But, in another way, some are under law as constrained by it; and in this way virtuous and just men are not subjected to law, but only evil-doers. For that which is constrained and violent is contrary to the will; but the will of the good is in harmony with the law from which the will of the evil is discordant. In this sense the Apostle says (1 Tim. i. 9), "Law is not made for a righteous man," because such "are a law unto themselves, in that they show the work of the law written in their hearts" (Rom. ii. 15). Spiritual men are led by the law of the Spirit, which is higher than any human law, and they are not under such law as opposes that guidance; but still it is part of that guidance that those who are led by the Spirit be subjected to human laws. So S. Peter says (1 Ep. ii. 13), "Be subject to every ordinance of man for the Lord's sake."

Is it ever admissible to act contrary to the letter of the law?

Every law is ordained for the common good, and thus gets its force and meaning. As it departs from this it loses its obligatory power. "No law or equity allows that the things which are introduced for the benefit of men, should by us be turned, through too rigid interpretation of them, to a severity which is against the common good." But it oftentimes happens that something is generally useful to be observed for the common benefit, which in some cases is highly injurious. Therefore, because the legislator cannot consider every individual case, he enacts a law which fits the great majority of cases, directing his intention to the common utility. Hence, if cases emerge in which the observance of such a law is injurious to the community, it is not to be observed (natural equity and common sense are higher law).

But if there be no sudden emergency which must be met at once, it does not pertain to each one to judge what is useful or injurious to the commonwealth, but the question must be submitted to the proper courts. But in case of sudden emergency necessity itself dispenses from the law it "knows no law."

This is not to judge the law, but the individual case where the law does not bind.

Evident injury may show that the legislator did not have such case in his intention. In doubt, the letter of the law must stand or authority be consulted.

No doubt wise legislators knew how to express their meaning in their words, but there are limits to the possibilities of such expression; and, even if it were possible to consider every case, still it would lead to hopeless confusion to attempt it. Laws must be made for what ordinarily occurs.

The mutability of human laws.

Law is the dictate of human reason whose natural progress is from the imperfect towards the perfect. The first attempts at legislation proving to be deficient in many cases, subsequent legislation corrects more or less of those deficiencies. Also, since laws regulate human conduct, they are rightly changed with the changed condition of men, for which different things become expedient. "If a people be self- controlled and serious, it is a right law that such a people select the magistrates by whom the commonwealth may he directed. But if, little by little, the same people become venal in the exercise of suffrage, and entrust the government to the most corrupt among them, it will be right that they lose the power which they have so abused" (S. Aug., Lib. Arb. i. 6). The law of nature, being a participant of eternal law, is, like it, immutable. But human reason is imperfect and mutable; therefore so is its law. Natural law contains universal precepts (fitted to all circumstances), but human law contains special precepts for certain variable conditions.

A measure ought to be as permanent as the nature of things admits; but in mutable things, no such measure may be possible.

It is true, also, that what is once right is always right but it does not follow that what is once law should always be law, for the rectitude of law is relative to the common utility, which is a variable thing.

Should human law always be changed whenever something better presents itself?

It is rightfully changed if the common utility calls for such change. But the very change in itself, as change, is detrimental to the common good, because custom is a weighty element in law. What is done contrary to usage, even if it be easier in itself, seems harder to do. When law is changed, the sense of obligation towards it is diminished, inasmuch as custom is violated. Change therefore demands an equivalent compensation for this loss. That is, either there must be the greatest and most evident utility in the change, or the gravest necessity for it, or some manifest wrong in the established law, or some great injury done by it.

Laws may be based on reason, but much of their force is due to usage.

Can custom obtain the force of law?

The reason and will from which law proceeds are manifested not only by words respecting what is to be done, but by deeds. Each one seems to choose that as good which he actually does. Now, as human words, manifesting reason's thought, can enact and change laws, so, through manifold acts which create custom, can law be enacted or changed. For when a thing is oftentimes done, it seems to proceed from the deliberate judgment of reason. In this way custom gets the force of law, abolishes law, and interprets laws.

(1) But no custom proceeding from human will can change the Divine and the natural law or have any force against them. "Custom must give way to authority; law and reason must overcome evil usage" (Isidore).

(2) Some one objects, again, that many wrongs cannot make a right. He who first begins to act against the law does wrong; multiplied acts of the same kind can never make the action right. But I reply, also, that human law is necessarily deficient in some cases; and hence it is possible in such a case that the act which is contrary to the law is not evil. And when such cases are multiplied through the changed condition of society, then custom shows that the law is no longer useful as distinctly as if a contrary law were promulged. But if, on the other hand, the grounds of the law still remain unchanged, then law has the supremacy over custom, not custom over law, unless perhaps when the law seems useless, being not possible according to the custom of the country, which custom was one of the conditions of the very law in question.

(3) It may be argued that custom grows strong from the acts of private individuals as such; but that they cannot make a law. But, I reply, where there is a free people which can pass a law for itself, the assent of that people to the observing of any regulation is of the essence of law, and this assent is manifested by custom. Individuals as such cannot make a law, but the whole people can. And even if the people are not free to make and to abolish laws, yet prevalent custom among them gets the force of law, because it is tolerated by the law-makers; and so they seem to approve what custom has introduced. ("Silence gives consent.")

A power of dispensation from purely human law, not from the law of nature, may fitly be entrusted to the rulers of the people. For a precept which is generally advantageous for the common good may not fit this particular person or this special case, because some better thing may be prevented or some serious evil be brought about; and, except in evident and sudden danger, there is great risk in leaving this power of dispensing with law for one's self in each individual's hands. It is safer and better, within the sphere of human authority, to entrust that power of dispensation to the executive. (Pardoning power.)

§ 5. Divine law.

Besides the lex naturae and human law, a Divine law is necessary for the direction of human life.

This for four reasons: (1) Because by law man is directed towards acts which are related to his ultimate end. And if, indeed, man were only ordained to an end which did not exceed the proportion of his natural faculties, he might need no other direction on the part of reason than the law of nature and human law derived from that. But because he is ordained to an eternal beatitude which exceeds the proportion of his natural faculties, he needs to be directed towards this end by a law Divinely given for this purpose.

(2) On account of the uncertainty of human judgment, especially in contingent and particular cases, judgments about human acts are diverse, from which also proceed diverse and contrary laws. Therefore, in order that man without any doubt may know what he is to do and what he is to avoid, he needs to be directed in his proper acts by law Divinely given, in which there can be no error.

(3) Man can make law only concerning those things in which he is able to judge. But his judgment cannot be respecting the hidden inward acts, but only respecting the outward apparent motions. And yet. the perfection of virtue requires that man be right both outwardly and inwardly. Therefore human law cannot restrain and ordain sufficiently inward acts, but a supervening and Divine law is needed.

(4) Human law cannot punish or prohibit all things which are ill done, because in aiming to take away all evils, many good things would be taken away also, and the utility of the commonwealth, which is necessary for human conservation, would be impeded. In order, therefore, that no evil remain unprohibited and unpunished, a Divine law is needed which prohibits all sins. We may find all four reasons for Divine law in Ps. xix. 7: "The law of the Lord is an undefiled law," permitting no turpitude of sin; "converting the soul," because it directs not only outward acts but the inward also; "the testimony of the Lord is sure," on account of its certitude of truth and righteousness; "giving wisdom unto the simple," by ordaining man to his supernatural and Divine end.

Divine law is either the old and imperfect, or the new and perfect.

The one was for children, the other for grown men (Gal. iii. 23). Note the difference between the perfect and the imperfect in three respects: (1) It pertains to law that it order for the common good as the end; the Old Law ordered directly for a sensible and earthly good, the New for a spiritual and heavenly good. (2) Law directs human conduct according to the order of righteousness; the New Law is above the Old in ordering the inward acts of the heart. (S. Matt. v. 20: "Except your righteousness shall exceed that of the Scribes and Pharisees, ye shall in no wise enter into the kingdom of heaven.") Therefore it is said that "the Old Law restrains the hand, the New Law restrains the soul." (3) It pertains to law that it lead men to observe its mandates. This the Old Law did by threats, but the New Law by love which is shed abroad in our hearts through the grace of Christ, figured in the Old Law, conferred in the New.

How was the Old Law imperfectly good.

It was good, for it harmonized with created reason in repressing concupiscence which is opposed to reason; e.g., saying, "Thou shalt not covet." Thus it prohibited very many sins which are contrary to reason. But that may be good which is, nevertheless, imperfect in its kind. In the means to an end, that is perfectly good which is per se sufficient for that purpose. But the imperfectly good contributes to that end without being sufficient, as medicine may benefit a man without curing his disease. But the end of Divine law is different from that of human law. The latter aims at the tranquillity of an earthly society, at which it arrives by restraining outward acts, in those evils which can disturb the peaceful state of society. But the end of the Divine law is to lead man to eternal felicity, which end is hindered by every sin, inward as well as outward. Therefore what suffices for the perfection of human law -- sc., that it prohibit sins and affix their penalties -- does not suffice for the perfection of Divine law; but it must make man fit for the participation of everlasting felicity, which can only be done through the grace of the Holy Ghost, through which love is poured into our hearts and fulfils the law. For "the gift of God is eternal life" (Rom. vi. 23). The Old Law could not confer this grace; it was reserved for Christ. "The law was given by Moses; grace and truth came by Jesus Christ" (S. John i. 17).

All the precepts of the Old Law were one in the end sought for -- sc., the love of God and our neighbour (S. Matt. xxii. 40) -- but their multiplicity includes three classes of precepts, viz., moral, ceremonial, and judicial.

It had moral precepts, because the chief aim of Divine law is to establish friendly communion between man and God, which can only be through virtue. It had ceremonial precepts, because it ordained man with reference to God, which is done not only by inward acts of the mind, as believing, hoping, loving, but also by those outward actions in which man offers homage to God. The worship of God as an act of virtue pertains to the moral law; it is part of the law of nature; but the determination of this precept to such and such gifts and sacrifices belongs to Divine positive law -- i.e., to the ceremonial law.

The Old Law had judicial precepts, for it determined the law of nature respecting justice between man and man by positive laws which we name judicial. All precepts of the Old Law are reducible to these three, or to directions respecting the manner of observance.

The moral precepts of the Old Law.

Moral precepts regard those acts which pertain to a good life; such harmonize with reason, the proper principle of human conduct; and every judgment of human reason is in some way derived from natural reason, either by direct, immediate, simple deduction from principles naturally known, or after more careful consideration of special circumstances has been required, or where special Divine instruction has been necessary. In one way or other all moral precepts pertain to the law of nature. "Honour thy father and thy mother; thou shalt do no murder; thou shalt not steal" -- reason instantly judges that these are right. But the command to rise up before the gray head, and to honour the person of the aged, is deduction from first principles. For the Second Commandment Divine instruction was necessary, although it is part of the lex naturae.

Are all acts of virtue embraced in the moral precepts of Divine law?

It is a different community for which Divine law is ordained from that for which human law is ordained. For the latter regards the civil community of men in their several relations to one another. But men are so ordered by outward acts, through which they communicate with one another. And communication of this kind pertains to the idea of justice, the virtue of civil society. If other virtues are ever enjoined in civil law, it is still under the same idea (Nic. Eth. v. 1). But the community for which Divine law ordains is that of men with God. Its precepts, therefore, order all those things by which man is put into his due relations with God. But man is joined with God by his reason, which is the image of God; and, therefore, Divine law gives precepts concerning all those things by which reason is well ordered -- i.e., the acts of all virtues -- some as commands which are essential to the order of virtue, some as counsels which are advantageous for the well-being Jf perfect virtue.

All the moral precepts of the Old Law are reducible to the Decalogue.

The Ten Commandments are said to have come directly from God, and man by himself has knowledge of them as Divine. Either they can be known at once by simple deduction from the primary universal principles, or they are immediately evident to faith divinely infused. Two classes of precepts, therefore, do not appear in the Decalogue; sc., first, those which are primary and universal, which need no promulgation, are written in natural reason, being self-evident, as that man shall harm no one, etc.; and, secondly, those which require the diligent reflection of the wise to discover their harmony with right reason, for these were given to the people through Moses and the prophets. Yet each of these kinds of laws is contained in the Decalogue; the first, as the principles from which their proximate conclusions are derived; the second, as deductions which the wise can make from the Ten Commandments.

Note, of course, that the Fourth Commandment is at once ceremonial and moral.

Why does the Decalogue contain nothing of a man's duty to himself?

First, those Ten Commandments are based on love of God and our neighbour, and natural law respecting this has been obscured by sin; but not so with self-love; the law of nature is quite enough. Secondly, the Decalogue, coming immediately from God, contains, as we have seen above, those things which the minds of the people can receive as soon as they are heard. But every true man sees at once that he owes something to God and to his neighbour. But that something is due in what belongs to himself, and in which at first sight he appears to be absolutely free, this is not so immediately apparent. Therefore precepts prohibiting acts of disorder with respect to one's self came to the people through their wise legislators. The same remarks may be applied to the Fifth Commandment.

The power of dispensation can in no way reach to the Decalogue.

Dispensation, as we have found, (p. 136), applies to cases in which, if the letter of the law were observed, the intention of the law-maker would be contradicted. But that intention is, primarily, the common good, and, secondly, the order of justice and virtue by which that good is attained and preserved. Therefore the precepts. which explicitly contain these, contain the intention of the lawmaker, and are indispensable. Dispensation is admissible only in precepts which are ordained for those higher precepts, determining them in special modes. Thus the law of treason is indispensable; but certain acts which have been legally treasonable may in special cases be allowed, without prejudicing the law of treason or the intention of the law-maker, on account of some great utility.

But the Ten Commandments contain the very intention of God, the sovereign Legislator; the first table contains the order for the general and filial good, which is God; the second, the order to be observed among men; viz., to give each his due, and to wrong no one. Such order is indispensable and immutable. But as respects their determination and application to special acts (determining what is theft, murder, etc.), there may be change by Divine authority in that which is instituted by Divine authority alone (Divine positive law), or even by human authority, in that which belongs to men's jurisdiction,

Does the mode of virtuous action fall under the precept of law?

Law has coactive force; that, therefore, directly falls under the precept of law to which the law compels. But the coaction of law is through fear of its penalty. That is commanded for which the penalty of law is inflicted. But herein Divine law differs from human law. For the penalties of violated law are only inflicted on those concerning whom there can be judgment, because the law punishes after judgment. But man, the maker of human law, can only judge of outward acts; God alone, the author of Divine law, judges the hidden motions of the will. So, then, in one respect, both human and Divine law consider the mode of virtuous action; in another, only Divine law; in another, neither human nor Divine. But the mode of virtuous action. consists in three particulars (Nic. Eth. ii. 4): (1) The knowledge possessed by the agent. Both human and Divine law take this into consideration, for what one ignorantly does is accidental. Both human and Divine law judge whether there was ignorance of the fact on the part of the agent, and acquit or condemn accordingly.

(2) The mode involves the willing or choosing the action and the purpose in choosing, the two-fold inward motion of will and intention. Human law does not judge of these, but the Divine law does; for human law does not condemn of murder one who wishes to kill and does not, but Divine law condemns him. "He that is angry with his brother shall be liable to the judgment ' (S. Matt. v. 22).

(3) The third particular is the acting firmly and immovably; and this fixity of virtuous action belongs to rooted habit. This is not contained in either human or Divine command, for neither by man nor by God is one punished as a transgressor who pays due honour to his parents, although he may not yet have formed the fixed habit of filial piety. (This habit is the end of the law, and actions are commanded which may create the habit, and make men truly virtuous.)

The end of the precept is not the same with the matter of the precept, the latter being means to the former.

But, you may say, we are commanded to "serve the Lord with gladness" (Ps. c. 1), and "The Lord loveth a cheerful giver " (2 Cor. ix. 7). I answer that if one obey sorrowfully, he is acting unwillingly, and good will is part of the Divine command. But there are two kinds of pleasure in virtuous action, one which is derived from love of God and of our neighbour, which love, and, therefore, the consequent pleasure, fall within the scope of the command; another, which comes from habit already formed, which is not commanded. For an action may be pleasant either on account of the end sought for, or on account of its agreeing with one's habits.

Is every outwardly virtuous act truly sin, if it does not proceed from charity?

In other words, "Does the mode of charity fall under the precept of the law?" The act of charity may be considered per se. And this is the "first and great commandment," viz., "Thou shalt love the Lord thy God;" and the second is, "Thou shalt love thy neighbour as thyself." Man can fit himself to receive this gift, and having it, he can use it. But whensoever one who has not charity does an outwardly virtuous act, he does not sin mortally in that, because the command that we do all good acts with charity ("the end of the commandment is charity," 1 Tim. i. 5) is an affirmative precept, and (like affirmative precepts generally) does not always bind, but only for that time in which charity exists within the soul.

Secondly, then, charity may be considered as the mode of action in obeying other commands. So viewed, it is not ineluded in those commands. "Honour thy father," does not say, "honour him out of charity," neither does he transgress that command who lacks the charity, though he may be a transgressor of the commandment of charity, and for that reason may merit punishment.

The obligation to filial honour out of charity arises from the duty of referring all things to God; sc., from the law, "Thou shalt love the Lord thy God with all thy heart."

The moral precepts of the Old Law are not confined to the Decalogue. All of them are based on the dictates of natural reason, and would have efficacy even if they had not been laid down in law. In this they differ from ceremonial and judicial precepts, which derive all their force from the fact of institution.

But there are three grades of moral precepts; some are so manifest and universal that they do not need promulgation -- e.g., the love of God and our neighbour, which is the end of the commandments -- in which no sound reason can err. But some precepts are more determinate, whose obligation any one can see at once, and yet human judgment is liable sometimes to be perverted concerning them. These need special promulgation; and these are the precepts of the Decalogue. Others, again, are not so manifest to every one, though thoughtful persons readily see their force; and these were given to the people from God through Moses and Aaron. But these superadded moral precepts are reducible to those of the Decalogue. Thus blasphemy and false doctrine were superadded to the prohibition of the third commandment; reverence for the aged to the fifth prohibition of hatred to the sixth; fraud in weights and measures to the eighth, etc.

§ 6. The Evangelical law.

Is it a written law?

That which is most powerful in it, and in which its whole virtue consists, is the grace of the Holy Spirit, which is given through faith in Christ. Thus S. Paul says (Rom. viii. 2), "The law of the Spirit of life in Christ Jesus made me free from the law of sin and of death;" and S. Augustine (De Spiritu et Litt., c. 17 and 26), "The law of works was written on stone tablets, but the law of faith on the hearts of the faithful;" and (c. 21), "What are the laws of God written by God Himself in the heart, but the presence of the Holy Ghost?" (Jer. xxxi. 33).

But, besides, the New Law contains the things which prepare and fit for this grace, and also what pertains to its use. In these the faithful must be instructed by words spoken and written concerning what they are to believe and what they are to do. And so, principally, the New Law is a law implanted in the soul, lex non scripta; but, secondarily, it is a written law. Thus the Gospel prepares the intellect through faith for the reception of the grace of the Holy Ghost, by manifesting the Divinity and the humanity of Christ. The Gospel disciplines the affections to due renunciation of the evil world, whereby man is made capable of the gift. And the use of spiritual grace in the works of Christian virtue is the subject of manifold exhortations in the New Testament.

The law of nature is written on the hearts of all men, but here is something superadded to nature, not only indicating what is to be done but aiding in its fulfilment.

This faith may have been implicit in those who have not had the New Testament, and through the faith of Christ man attains to the New Testament (whether or not he have a written Gospel).


It is the law written in the soul -- sc., the grace of the Holy Spirit -- which makes the New Law a law of justification. It is not the written Evangelical law. For "the letter killeth, but the spirit giveth life" (2 Cor. iii. 6).

Three reasons may be assigned why the new law was not given from the beginning.

(1) The impediment of sin must be first removed by the redemption through Christ (S. John vii. 39; Rom. viii. 3).

(2) The perfection of the New Law implies a preceding time of preparation for it. "The (Old) Law bath been our paedagogus to bring us unto Christ, that we might be justified by faith. But now that faith is come, we are no longer under a paedagogus" (Gal. iii. 24).

(3) Man was left to himself under the Old Law, that through falling into sin he might know his weakness, and his need of grace (Rom. v. 20).

But the New Law is to last until the end of the world.

For nothing can be more perfect or nearer to the ultimate end than that which immediately brings us to that end. But this the New Law does. For the apostle says, "Having therefore, brethren, boldness to enter into the holy place by the blood of Jesus, by the way which He dedicated for us, a new and living way -- let us draw near" (Heb. x. 19). The state of men and their consequent relations to the same law may vary, and the grace of the Holy Spirit may be more or less perfectly possessed, but no fuller gift is to be looked for than the apostles possessed.

Both the Old and the New Law had one and the same end.

In that respect they are one law. (See Rom. iii. 30.) But the one is the law of children, the other of perfection, i.e., of charity.

Should the New Law command or prohibit any outward acts?{3}

It has been already pointed out that the chief feature of the New Law is the grace of the Holy Spirit, which is manifested in faith working through love. But men obtain this grace through the Son of God made Man, whose humanity God has filled with grace which is derived from Him to us. "Of His fulness we all received;" "grace and truth came by Jesus Christ." Therefore it was fitting that the grace flowing from the Incarnate Word should be derived for us through some outward sensible means, and that from the inward grace by which the flesh is subdued to the spirit, some outward sensible works should be produced.

So, then, outward works in two ways can pertain to grace. In one way, after a certain manner, they may lead to grace; and such are the works required by the Sacraments of the New Law, as Baptism, Holy Eucharist, and the like. But others are outward works which are produced from the impulse of grace. And among these a certain difference is to he noted. For some have necessary connection with, or opposition to, the inward grace, which consists in faith working through love; and outward works of this kind are commanded or prohibited in the New Law. Thus, confession of the faith is commanded, and denial of it is prohibited (S. Matt. x. 32). But there are other works which have not such necessary connection with faith working through love. And such works were not commanded or prohibited at the first institution of the New Law, but were left by Christ, the legislator, to each one who had charge of any such thing. And so it is free to each one to determine respecting such things what it is expedient for him to do or to avoid, and to each one who has authority over others to ordain for them in such things what is to be done or avoided. Hence, the Gospel is called a law of liberty, for the Old Law determined many things, and left few to be freely determined by men themselves.

(1) But it is objected that "The kingdom of God is within us" (S. Luke ~xvii. 21); and "The kingdom of God is not eating and drinking, but righteousness and peace and joy in the Holy Ghost" (Rom. xiv. 17). Therefore, the New Law does not command or prohibit outward acts.

The kingdom of God does, indeed, consist principally in inward acts; but, consequently, all those things pertain to that kingdom without which the inward acts cannot exist. If the kingdom of God is inward righteousness and peace and spiritual joy, it follows that all outward acts which are opposed to righteousness and peace and spiritual joy are opposed also to the kingdom of God; and, therefore, they are prohibited in the Gospel of the kingdom. But those actions which are indifferent in this respect, as eating this or that food, do not constitute the kingdom of God, as the apostle says.

(2) Again, it may be objected that the New Law is the law of the Spirit, "and where the Spirit of the Lord is, there is liberty" (2 Cor. iii. 17). But there is no liberty where men are compelled to do or to avoid any outward works. These, therefore, do not belong to the New Law.

But I answer that he is free who is "causa sui;" he freely does anything who acts from himself. But what a man does from a habit agreeing with his nature, he does of himself. But if a habit should be repugnant to nature, the man would not act of himself, but only according to a supervening corruption of his nature. Because, therefore, the grace of the Holy Spirit is a kind of inward infused habit inclining us to operate rightly, it makes us freely do those things which harmonize with grace and avoid those things which are repugnant to it.

So, then, the New Law is called a law of liberty for two reasons: First, because it does not constrain us to do or to avoid anything except those acts which are in their very nature either necessary or repugnant to our salvation, which things fall under the precept or the prohibition of the law. Secondly, because it enables us freely to fulfil precepts or prohibitions of this kind, inasmuch as they are fulfilled from the inward motion of grace. For these two reasons the New Law is called the "law of perfect liberty" (S. James i. 25).

What outward acts are commanded or prohibited in, the New Law?

We have seen that only those are found in the New Law by which we are received into grace, or which necessarily pertain to the right use of it. And becanse we cannot obtain grace of ourselves but only through Christ, therefore the sacraments by which we obtain grace were instituted by the Lord Himself, and are sacraments of the New Law. (Their laws, therefore, are an essential part of Moral Theology.)

But the right use of grace is through the works of charity, which, indeed, as requisite for virtue, pertain to the moral precepts which were given in the Old Law. In this respect, then, the New Law had nothing to add regarding outward acts. But the determination of those works, so far as the worship of God is concerned, pertains to the ceremonial precepts of the law; and so far as our neighbour is concerned, to the judicial precepts. And, therefore, because those determinations are not in themselves necessary for inward grace in which the New Law consists, they are not commanded by it, but are left to human judgment; some to each individual man, but others, which pertain to the common utility, to rulers, temporal or spiritual. So, then, the New Law commanded or prohibited no outward works, except sacraments and such moral precepts as are of the essence of virtue.

Sacred rites in which grace is not given, and which, therefore, do not of themselves pertain to the necessity of inward grace, the Lord left to be instituted by the faithful according to their judgment. The Sermon on the Mount contains the complete guide of the Christian life in its perfect ordering of the inward motions of the heart.

Besides commands, the New Law contains some determinate counsels.

The difference is that a precept implies necessity of fulfilment, but counsel is left at the option of him to whom it is given. It is the law of liberty which adds counsels to commands, not the Old Law, which was a law of bondage. The precepts of the New Law refer to those things which are necessary for the obtaining of the end -- sc., eternal beatitude -- into which the New Law immediately introduces man. But counsels are of those things through which man can better and more expeditiously reach that end. But man is so placed between the things of this world and those spiritual goods in which his eternal beatitude consists, that the more he cleaves to the one, the more he recedes from the other, and conversely. He, then, who entirely cleaves to the things of this world, seeking the end of his being in them, making them the reason and rule of his actions, totally abandons spiritual goods; and, therefore, inordination of this kind is forbidden by absolute commands.

But in order to arrive at that end it is not necessary to cast away entirely the things of this world, because man can use them without making them his end, and so reach eternal beatitude. But he will do so more expeditiously by that renunciation which is the Evangelical counsel. But the goods of this world, which are useful in human life, are three in number; sc., (1) Outward riches, which lead to the lust of the eyes; (2) sensuous pleasures, which lead to the lust of the flesh; and (3) worldly honours, which pertain to the pride of life (1 Ep. S. John ii. 16). But to abandon these three as far as is possible pertains to the Evangelical counsels, as in the three-fold vow of poverty, celibacy, and obedience. And, furthermore, observance of any one of them, in any particular case, pertains to counsel in that special case; as when a man gives alms to the poor without any direct obligation to do so, he follows counsel in that action. Or when for some determined time he abstains from sensuous pleasures in order to have more time for prayer, he follows counsel for that period. Or when he gives up his will in any particular, although he could lawfully have it, he follows counsel in that case -- say, if he benefits his enemies when he is not bound to do so, or passes by an injury for which he might justly demand compensation.

(1) It is true that these counsels as such are expedient for all, but owing to the spiritual state of some one, they may not be expedient for him, because his affections are otherwise inclined. Accordingly, the Lord, in proposing the Evangelical counsels, always makes mention of the fitness of men for observing them. "If thou wilt be perfect, go and sell all that thou hast" (Matt. xix. 21); "He that is able to receive it, let him receive it" (ib. v. 12); and S. Paul says, "This I say for your profit, not that I may east a snare upon you" (1 Cor. vii. 35).

Observe, with reference to the example cited above, that love of enemies, as a preparation of the soul, is necessary to salvation, and is so commanded; sc., that a man be ready to do good to his enemies, etc., when need so requires. But that one should go out of his way to do so, when there is no special need, pertains to special counsels.{4}

{1} I should add here that the decisions of such judges create a precedent and custom which soon obtains the force of unwritten law, as in the common law of England and the United States, which did not come within the purview of our author.

{2} For conditions of positive law, see Supplement, p. 5[04].

{3} This is a most fundamental question for the student of Moral Theology. Lutherans dogmatized from the necessity of faith to a contempt of "legality;" and so, Moral Theology, at first denounced, when nominally revived appeared as a subjective Moral Philosophy with very loose sense of the obligation of an objective law revealed by God for the conduct of human life. See, for example, Lutheran treatment of the sacrament of Holy Matrimony.

{4} The remainder of the Prima Secundae of the Summa, discussing the subject of Grace, although it has intimate bearing on Moral Theology, yet being equally connected with Dogmatic Theology proper, is relegated to that subject.

<< ======= >>