Jacques Maritain Center : Elements of Moral Theology


§ 1. General principles.

Conscience, as the internal rule of human acts, needs an external guide, and law is this guide. And since God alone is the all-sufficient guide of man, all law is grounded on the Divine law. The atheist is the true "anomist." But that Divine law is communicated to man under human conditions, through human agents. Thus there are four grades of law binding conscience (a) per se simpliciter, i.e., absolutely, the command of God, as His command; (b) per se, but not simpliciter, human law given by a superior who possesses authority; (c) per se, but not simpliciter (for this and the next can be changed), law proceeding from self, in vows and promises; (d) per accidens (variable according to time and place), the law of avoiding scandal (q.v. page 253). (See Sanderson's Praelect. iv. 6.)

Although affirmative laws always imply a negative prohibition, and negative prohibitions imply a positive command, yet there is an essential distinction between them as such. The negative law is always obligatory, while the affirmative law is only so under its appropriate conditions. This principle is universal in casuistry, and of great practical importance. (See Duct. Dubitant. 11. iii. rule 1, 13, 14.)

The "law of nature," the Divine will manifested by the natural light of reason, teaching what can be derived from right reason (the subject of Moral Philosophy), has for its object all that agrees with, or is necessary for, a rational creature.

Its three fundamental precepts are "honeste vivere, alterum non laedere, suum cuique tribuere" (Instit. 1. i. 3), "to hurt nobody by word or deed, to be true and just in all my dealings."

Distinguish carefully, however, (a) these primary and unchangeable principles of the law of nature; (b) immediate deductions from them as in the Decalogue; (c) remoter inferences in which differences of judgment may arise.

Every rational man is possessed of the first and second of these as a promulgated law (Rom. ii. 15; see also Sanderson's Praelect. iv. 24).

Ignorance of laws like these, which one is bound to know, is no excuse for their violation. This also is an established principle in the civil and the common law. "Ignoratio legis quam quisque tenetur scire neminem excusat."

Ignorance of the fact which comes under the law is a valid excuse.

A doubtful law does not bind conscience, and liberty may be used, if no other principle forbid. Here applies the maxim, "Melior est conditio possidentis."

But where there is doubt of the abrogation of a certain law, according to the same maxim, we must stand by the law.

Also, in doubt of fact under the law, we must stand by the law; e.g., we are certain of a debt, but not certain that it has been paid; then we are bound to pay it.

§ 2. Human law.

Though human laws under their requisite conditions are binding in conscience (Introd. page 131; Rom. xiii. 5), they have no right over judgment; i.e., they demand only outward obedience with a willing mind, both in public and in private (Col. iii. 23).

In the authority to make laws is implied not only the laying down deductions from the law of nature, but also the binding on conscience things otherwise indifferent, "positive laws" (Duct. Dubitant. III. i. rule 1, § 13).

Conditions requisite in the law-maker are (a) the authority must be competent to make a law; (b) the matter must not transcend the limits of the authority, e.g., religion and conscience in the case of civil law, the secular life in the case of ecclesiastical law (Qu.: Has the state authority to make laws respecting education?); (c) the law-maker must not be legislating for the advantage of a clique, "or trust," or for other undue ends.

Conditions requisite in human law. The thing commanded must be (a) possible; (b) not immoral, for human laws are not obligatory if they are not just and good, i.e., if they violate the higher law of nature; (c) useful to the community (1 Tim. ii. 2); (d) not unequal in application to the subjects of the law (Duct. Dubitant. III. i. rule 3; Sanderson's Praelect. v. § 7); (e) permanent and universal, not a "privilegium"; (f) promulgated, not an "ex post facto" law (Duct. Dubitant. III. i. rule 6), for the subject of the law must have opportunity of knowing it if he will. Otherwise there may be a civil offence, but there is no sin, because the ignorance is invincible; and invincible ignorance, like physical or moral incapacity, excuses violation of law. This applies even to the Gospel law (S. John xv. 22). (Qu.: Does positive law, if unequal, bind in conscience? Sanderson's Praelect. ix. 9-11.)

What was said (Introd. page 133), that human law is not binding when per accidens serious injury will result and no manifest good will come from it (see also Sanderson's Praelect. vi. 8), is also true of Divine positive law (Duct. Dubitant. III. i. rule 2, § 8), but not of the law of nature. But the principle applies equally to civil and ecclesiastical law; e.g., promises of aid to the Church, if meanwhile relatives fall into need; rubrics of the Church, etc.

The application of law, e.g., judicial sentence, founded on false presumption of fact, does not bind conscience. (Qu.: What means may be used to escape from the law?)

But in all these cases, per contra, scandal must be avoided.

To justify evasion, (a) the matter must be serious; (b) the injustice certain; (d) the law must be against the public good, not merely inconvenient for the individual.

Interpretation of the law may be by (a) the legislator himself; (b) by experts, e.g., judges; (c) by custom. Words are to be taken in their ordinary and usual meaning if nothing absurd or unjust follow. In doubt consider (a) the intention of the legislator; (b) the object of the law (c) the concomitant or subsequent circumstances (Duct. Dubitant. III. vi.).

Penal law is to be narrowed as far as possible, and not to be extended to parallel cases; favourable law, on the other hand, is to be amplified by "parity of reasoning."

Laws also founded on the law of nature, e.g., the fifth commandment, extend to all cases which are similar, or have equal or similar reason, when such is the law's evident intent (Duct. Dubitant. III. vi. rule 3, § 24). On equity see Part III. page 397.

Human law loses its force (a) when it is formally abolished; (b) when the motive for its establishment comes to an end (Duct. Dubitant. III. vi. rule 3); (c) through desuetude, implying tacit consent of the law-maker (Qu. Canon law?). But when the end does not apply in special cases, those cases are not released from the obligation of the law (ib. § 4).

On Dispensation the rigorist view will be found in Sanderson, Do Jur. Oblig., vii. § 3. But see, per contra, the case of rash vows as treated by him.

§ 3. Ecclesiastical law.

This directs the Church for the common spiritual good and for eternal~ beatitude. The authority to make laws which bind conscience is implied in the existence of a divinely instituted society; Christian sects cannot possess it. And, conversely, the existence of such Divine laws implies the existence of one visible and apostolic Church (S. Matt. xvi. 19, xxiii. 2; 5. Luke x. 16; 5. John xx. 23; Heb. xiii. 17).

When the old law, ceremonial and judicial, was abrogated, the natural -- the moral -- law remained unchanged and unchangeable. But while the new (the evangelic law) makes the remote deductions from the law of nature become clearer, its peculiar characteristic is that it is a law of love and grace -- the law of a snpernatural life (Sanderson's Praelect. iv. 26, 32).

It is (a) moral, including the three theological virtues; (b) ceremonial, e.g., the Holy Eucharist; (c) a law of counsels of perfection (see Introd., page 151).

Positive laws of apostolic origin, i.e., of purely external order, are binding only so far as the Church has perpetuated them; e.g., concerning eating blood and things strangled; widows of four-score; women speaking in church; the uncovered head in church; bishops not novices (S. Ambrose), etc. A fortiori, this principle will apply to primitive canons.

§ 4. Civil law.

Civil law directs earthly societies to the common good of such communities. It is (a) the Roman law (the civil law in narrower sense of the word), based on Justinian's Code, the Institutes (elements), the Digest or Pandects, and the Novellae; it is (b) the unwritten law of the Teutonic races, on which are based the decisions of courts, thus originating the common law;{1} and (c) it is enactments of the legislatures of the state or the nation, which have sometimes boldly deviated from the common law.

The aim of civil law being the temporal good of the community, that good may require the toleration of moral evil; i.e., like the law of Moses, it may overlook certain forms of evil which are not inconsistent with the preservation of society. (See Introd., page 129.) Or, again, though not prohibited, they may be put under such regulations as reduce them to the narrowest possible limits; e.g., high license for the sale of distilled liquors; gambling-houses; stews under the Papacy (Sand. Praelect. vi. 18).

(May not a "license" for such things be viewed as an annual fine?)

Within its due limits civil law is binding on conscience, but ceases to be so if it be allowed to fall into desuetude. This, of course, is not true if the law be intrinsically bad; for whatever is certainly forbidden by the law of nature cannot be enjoined by civil law, and whatever the law of nature commands -- e.g., the care and education of children -- cannot be taken away or forbidden by the civil law which is only indirectly Divine (Duct. Dubitant. II. i. rule 10). But although civil law may not interfere with natural duties, it may restrain natural rights (ib. § 5).

Laws "purely penal" bind conscience only to the penalty; i.e., a right conscience may choose between obedience and submission to the penalty, e.g., "Five dollars fine for" etc. But "mixed penal" laws bind to obedience, and not merely to a penalty for disobedience. If the penalty be just, that binds conscience after sentence, not before; i.e., we ard bound to yield to that penalty and not evade it (Sand. Praelect. viii. 17, 24).

Unwritten law, or custom, under due conditions can obtain the force of law, abrogate, modify, or interpret old law. (See S. Aug. quoted in Duct. Dubitant. II. iii. 19.)

The requisite conditions are (a) the custom must be good, and useful to the community; (b) it must rest upon repeated, voluntary, and public acts of the community, implicitly intended as binding; (c) the custom must have been long continued, without authoritative protest.

Custom under law certainly aids in its interpretation (Duct. Dubitant. III.. vi. rule 6); but if it be plainly against the law, the law prevails, although the tacit consent of the law-makers may make that contrary custom a virtual revocation of the law, if it be revocable. No custom, however, can change laws which in their nature do not admit of change.

{1} Civil and canon law, although they do not always agree between themselves, came into conflict with the common law in England, especially under King Stephen (12th cent.), when the civil law was brought thither. E.g., in the question of the legitimation of bastards, the canon Law mercifully allows it upon the marriage of the parents; but the laity in Parliament said, "nolumnus Angliae leges mutare" (Blackst. Introd. page 19).

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