JMC : The State and the Church / by Ryan and Millar

12. The Moral Obligation of Civil Law

by Rev. John A. Ryan, D.D.

THE State performs its functions by means of law. Through the direct or indirect authorization of law, taxes are collected, public money is expended, public services, such as the post office, the public schools, the department of justice, the fire department, the police department, are administered, and the various regulatory measures affecting individuals and associations are ordained and enforced. It is law that warrants and supports every civil act performed by any official in any of the three great departments of government, the executive, the legislative and the judiciary. When a public official proceeds without the authorization of law or exceeds the scope of the law, his action has no civil validity.

The authority of the State to make laws is derived from God.{1} He has endowed men with such qualities and needs that they cannot live reasonable lives without the State. Therefore, He wishes the State to exist and to function in such a way as to attain this end, to promote man's temporal welfare. It does so by means of law. Hence civil law is genuine moral law, not merely a kind of legal or physical coercion. It binds in conscience. Herein it differs from the rules of a social club. The latter do not produce moral obligation. Even though they should be disregarded to such an extent as to destroy the club, its members would suffer no vital injury. On the other hand, men are deprived of a necessary means to human life and development when there is general disobedience of the laws of the State. The moral law which binds men to live reasonable lives, obliges them to adopt one of the essential means to this end, that is, to maintain the State and to obey its laws.

Such is the rational basis of the doctrine laid down in Holy Scripture, and taught without variation by the Catholic Church. According to this doctrine, the civil law binds in conscience, as such; not because it includes, nor only in so far as it includes, natural, or supernatural, or esslesiastical law.{2}

No declaration of any Church authority can be cited in favor of the contrary opinion. A few individual writers have held it, but the overwhelming majority of theologians teach that the civil law is morally binding on its own account, because of the moral authority possessed by the State.{3}

Of course, all ethically valid civil laws must be in harmony with the moral law of nature. A statute which is contrary to a precept of the natural law, has no moral force, however solemnly it may have been enacted, or formidably sanctioned, or vigorously enforced. Such an enactment is not law at all, but, as St. Thomas calls it, "a species of violence."


Indeed, all civil law may properly be regarded as either a reaffirmation of the natural law, or as an application of its precepts, principles or derived conclusions.{4} Of the former kind are the statutes forbidding theft, assault, and adultery. To the latter class belong the laws which determine individual property rights and prescribe the imposition and collection of taxes, and ordinances for the regulation of traffic on streets and roads. The natural law dictates that men should acquire and use external goods with a just regard to the rights of their fellows, but it does not inform them just how this requirement is to be observed and applied in particular cases. In virtue of the natural law, men are obliged to maintain the government, but there is no specific precept requiring this end to be attained through a certain form of taxation. We are enjoined by the natural law to refrain from inflicting physical injury upon the neighbor in our common use of the public streets, as well as in other relations, but we are not told whether the speed limit should be ten miles an hour or twenty. In all such cases, the general provisions and precepts of the natural law stand in need of specific and precise determination by the positive law. Civil statutes for this purpose derive their immediate moral authority and validity from the State itself. Their binding force cannot come directly from the natural law, since the latter is so general in its provisions that other specific determinations, for example, other property regulations and traffic regulations might be equally in harmony with these general provisions. Natural law cannot oblige men to comply with its general provisions in a particular way, when another way would be equally efficacious. The function of prescribing one method rather than another belongs to the State. Its right to make such a prescription flows from the fact that it is the authorized and the only competent agency to determine and enforce necessary and uniform methods of carrying into effect the general principles of the natural law in all such matters. The obligation of the citizens to observe these methods and regulations is based ultimately on the natural law, but its immediate and formal basis is the State.{5}

The objection might be raised that all the foregoing instances and the reasoning that they are intended to illustrate, refer only to civil ordinances which are necessary. The moral obligation to obey such statutes is as clear as the obligation to maintain an effective political organization. In both cases we can trace the compelling and obligatory influence of the natural law. Its precepts require men to deal justly and charitably with one another, and to make and obey whatever civil regulations are necessary to attain this end. But the case seems to be different with those civil statutes which prescribe and administer things that are merely useful. Government regulation of street traffic is necessary, but government ownership of railroads is not necessary. Whence comes the moral obligation upon the citizens to obey the law which forbids them to own a railroad?

The answer is that the obligation is derived ultimately from the natural law, precisely as in the case of the traffic ordinance. Just as the State has the authority to prescribe one maximum rate of speed rather than another, so it has the right to determine that goods and passengers shall be carried by the government rather than by private corporations. In both cases the end is the common welfare. In both cases the State must adopt some means to attain this end. In each case more than one means would be adequate. Some speed limit must be prescribed, but it need not be fifteen miles per hour rather than twenty. As compared with the latter, the former is merely useful, and vice versa. The case of the railroads is exactly parallel. They are necessary for the common welfare. They can attain this end substantially under either private or public ownership. The issue between the two methods is merely one of utility, and the State is not clearly obliged to choose one rather than the other. But it must authorize some one of the two. When it adopts government ownership, its action is morally binding on the citizens for the same reason that makes its traffic regulations morally binding. That is, it is determining a method of promoting the common good, in virtue of its authority as the only competent determinant of such matters. The obligation of the citizens to accept the determination actually made, i.e., government ownership, comes immediately from the authority of the State, but ultimately from that principle of the natural law which dictates that men should support all the legitimate activities of the State.

Individual citizens may think, and their opinion may be correct, that government ownership of railroads is less useful, less conductive to the common good, than private ownership. Nevertheless, they are morally obliged to accept the former for the sake of that same common good. Their refusal to do so would cause greater injury to the community than the continuation of and their acquiescence in the duly established arrangement. It would imply that a group of individuals may at any time reject any civil ordinance with which they do not agree. The contradiction is obvious between this position and the requirements of right reason, of the natural law, of the common good, and of individual welfare.

The sum of the matter is that every law enacted by a legitimate government, and not contrary to any provision of the natural law, whether its prescriptions are evidently necessary or merely useful, is in some degree morally binding on the citizens. The fundamental reason is the necessity, according to the divine plan, of an effectively functioning State for human welfare.

It has just been said that every genuine civil enactment is morally binding "in some degree." This phrase brings up for consideration certain modifications, or qualifications, of the general principle. It suggests these questions: Do civil laws bind under pain of mortal sin? Does their obligatory character depend upon the will of the legislator? Are some civil statutes "purely penal"? Does the validity of civil laws depend upon their acceptance by the people?


To the first of these questions the answer of the great majority of Catholic writers is in the affirmative. The reason is tersely stated by Suarez: Inasmuch as civil law binds in conscience, it necessarily produces a degree of obligation proportionate to its subject matter; if the latter is of grave importance, the obligation of obeying the law will likewise be grave.{6} Generally speaking, the person who violates a civil statute which prescribes some action of great importance for the commonwealth, is guilty of mortal sin. This proposition can be logically rejected only on the assumption that no civil law can be of great importance.

Such is the obligatory force of a momentous law, considered in itself. But we are confronted with the second question raised above. Does the obligation depend upon the will of the legislator? It is the unanimous, or practically unanimous, teaching of Catholic authorities that the intention of creating a moral obligation is of the essence of law, so that, a prescription by legislators who positively and explicitly intended that it should not bind in conscience, would not be a true law. It would be merely a direction, a counsel, or an expression of legislative preference. If the existence of moral obligation depends upon the will of the legislator, the same dependence must logically be predicated of the degree of obligation. Hence, the general opinion among Catholic moral theologians is that the legislator has the authority to render grave laws only slightly obligatory.{7} That is, a law which of itself would bind under pain of mortal sin, brings upon the transgressor merely venial guilt when this is the desire and intention of the legislator.

In order that a civil law should become obligatory to a grave degree two conditions are, therefore, necessary: First, that the subject matter be of great importance; second, that the legislator should intend the law to have this effect in the forum of conscience. Either of these conditions lacking, the law binds only under pain of venial sin. If the subject matter is of slight importance the legislator cannot perform the inherently contradictory feat of making the obligation grave; if the legislator does not wish a gravely important law to bind under pain of mortal sin it will not be obligatory in this degree.


A very important question arises here concerning the form which the legislator's intention must take in order to make an obligation slight which from the nature of the subject matter would he grave. Suppose he does not think about moral obligation at all, but merely has in mind the enactment of a law. In that case the law will bind in conscience, and the degree of the obligation will be determined by the importance of the subject matter. This is the normal effect of a true law, and it is always produced, so long as it is not positively excluded by the intention of the legislator. Suppose that the legislator explicitly desires that the law should be obligatory, but does not think about the degree of obligation. As in the former case, the obligation will be determined by the subject matter. If the latter is gravely important the law will be gravely obligatory. Therefore, a civil law of great importance always binds under pain of mortal sin, unless the legislator forms a positive intention to the contrary. A merely negative attitude toward the obligation will have no effect upon the obligation.{8}

The opponents of the doctrine that the legislator can render slight the obligation of a grave law, contend that the degree of binding force carried by a civil law depends exclusively upon the subject matter. The legislator's power is merely that of making or not making the statute.{9} This argument would lead logically to the conclusion that the existence of any obligation at all is entirely independent of the will of the legislator. Should the members of a legislative body explicitly will that their enactments should not be binding in conscience this reservation would be without effect. Suarez declares that such an enactment is not a true law; but this seems to be mostly a question of language.

Consider an ordinance which is clearly necessary for the common good, as, that which regulates the speed of vehicles. Does not the very necessity of this measure make it binding in conscience? It is true that a different law might be equally adapted to meet this necessity; and the inference might be drawn that the citizen who observed the provisions of this alternative and hypothetical rule would be under no obligation to obey the existing law. The reply is that the common good requires the enactment and the observance of one ordinance. Human welfare is not safeguarded through a kind of private interpretation by the citizens themselves of what constitutes a reasonable rule or standard. Now it is the proper and necessary function of the legislators to enact this uniform regulation. Once it has been chosen out of several possible ordinances, it becomes morally binding because of its necessity for the common good, no matter what the legislators may think of obligation. It is reasonable and necessary that they determine the provisions of the law, but it is neither reasonable nor necessary that they have power determine the question of its moral obligation.

Even laws which are not necessary for the common welfare may conceivably be obligatory against the desires of the legislators. For the common good may require that a law of this sort, even though no more useful than the alternative arrangement, be obeyed for the sake of social order. Violations of it might be detrimental to the public good merely because they were violations of duly enacted law. In such a situation, why should the unwillingness of the legislator to impose moral obligation have any moral effect or significance?

Whatever may be thought of the foregoing argument, the question whether the legislator has power to render a grave law only slightly obligatory, has no practical importance in modern communities. No legislative body ever thinks of exercising such power. Therefore, modern civil laws dealing with gravely important matters always produce their normal effect of binding under pain of mortal sin.{10}

The doctrine that the moral obligation of civil law depends to some extent upon the intention of the legislator, is sometimes made the basis of an extraordinary view of modern civil legislation. It is nothing less than the conclusion that the ordinances of practically all modern legislative bodies have no binding force in conscience. Laws do not bind in conscience unless the legislator intends them so to bind; now contemporary lawmakers cannot have such an intention since they do not believe in the existence of genuine moral obligation. Such is the argument. Tanquerey rejects it on the ground that whatever may be their general and theoretical attitude toward the reality of moral obligation, modern legislators do desire their enactments to have the utmost possible force and authority; hence they implicitly intend them to be morally binding.{11} Bouquillon takes a similar position, declaring that the legislator need not expressly intend to impose an obligation in conscience, that it is sufficient for him to have the intention of issuing a genuine command.{12} Lehmkuhl holds the same view as Tanquerey and Bouquillon, and points out that if explicit intention to bind the conscience were indispensable, the laws enacted by Pagan rulers would be without obligatory force, which is surely contrary to the teaching of Holy Scripture.{13} Suarez declares that the design of the legislator to make a true law suffices, and that the formal intention to bind in conscience is not necessary. He notes that legislators, particularly unbelievers, rarely advert to the question of moral obligation.{14} Indeed, it seems to be the general opinion of the moral theologians that an implicit intention suffices; that is, the intention that the enactment should have all the moral authority which attaches to a genuine law.

This conclusion seems to be entirely consistent with the "necessity of intention" doctrine, as regards two classes of lawmakers who have no explicit desire to bind in conscience; namely, those who believe that civil law is morally obligatory but do not advert to this fact at the moment of legislating, and those who theoretically disbelieve in genuine moral obligation, but who are willing that if perchance it does exist it should attach to their ordinances, In the minds of both these classes, there is inherent a true implicit intention to make the law binding in conscience.

As regards those lawmakers who are firmly persuaded that civil laws are not obligatory in the proper sense, for example, those who, with the English jurist, John Austin, reduce the moral obligation of legal statutes to the evil chance of incurring the penalty for violation, -- it is not clear that there exists even an implicit intention to produce moral obligation.{15} Tanquerey contends for the reality of such an intention on the ground that the legislator desires his laws to exercise all possible compelling force upon the will of the citizens, and therefore is quite willing that the latter should feel bound in conscience. Nevertheless, this not an implicit intention to impose objective moral obligation. It does not recognize the objective bond which is the essence of genuine obligation, the bond between the will of the law giver and the will of the law receiver. The only thing covered by such an intention is the state of mind of the citizen. That this should be affected by a persuasion of obligation, the lawmaker is perfectly willing; that the objective moral bond constituting obligation should extend from his will to the will of the citizen, the lawmaker has not even an implicit intention, for he totally rejects the possibility of such a bond. His intention comprises only a subjective condition, not an objective relation. It is hard to see how such legislators can have even an implicit intention, either to make a true law, or to impose moral obligation.

As a matter of fact, it is very doubtful that many contemporary legislators deny to civil laws the possibility of moral obligation in the absolute and comprehensive manner supposed in the preceding paragraph. Probably the great majority of them accept, at least in some vague way, the existence, or at any rate, the possibility of a juristic moral bond between law giver and law receiver. This is a sufficient basis for an implicit intention to bind in conscience. Therefore, the general opinion of moral theologians that modern civil laws bind in conscience, is consistent with their teaching that this moral force is in some degree dependent upon the will of the legislator. To be sure, the case for the moral obligation of contemporary laws becomes clearer and simpler if we accept the theory that their obligatory character is independent, of the legislator's will and is inherent in the laws themselves.


The third question raised above concerns those laws which jurists and theologians call "purely penal," or "merely penal," or "disjunctive." They are defined as laws which oblige the citizen either to obey them or to accept the penalty appointed for their violation. The obligation is not absolute, but conditional. If the citizen is ready to submit to the penalty he can licitly disobey the provisions of the law. Generally speaking, however, he is not bound in conscience to undergo the penalty until it has been formally imposed by the court. He is not obliged to give himself up, nor to forego his civil right of legal defence.

The great majority of moral theologians hold that the legislator has authority to enact laws of this sort. In the first place, it is contended that the object of the law and the common good may sometimes be more effectively promoted by a statute which leaves the citizen free to disobey the law and become morally liable to the penalty, than by one which gives no such choice but entails moral guilt every time it is violated. Such are laws which men transgress with uncommon frequency, but whose object can be adequately attained through the infliction of penalties upon their violators. A purely penal law is in some sense a concession to human weakness. The second reason given by the theologians to support the proposition under consideration is the legislator's power over the obligatory character of his enactments. Just as he can determine that a gravely important law shall bind only under pain of venial sin, so he can make the obligation of certain laws disjunctive. That is, he may attach the obligation either to the observance of the law or to the acceptance of the penalty, so that the citizen has the option of being bound to the latter instead of the former.

It is to be observed that a purely penal law must carry some obligation. The legislator cannot enact a statute which would bind the citizen neither to obey its provisions nor to accept its penalties.{16} Such an enactment would not be a true law, inasmuch as it would lack an essential element, namely, moral binding force. Hence the legislator must have at least the implicit intention of morally obliging the citizen to accept the penalty in case of violation.

It seems, however, that the practical obligation of a purely penal law is attenuated almost to the vanishing point. If the violator of the law is not obliged to make known his transgression, nor to waive his legal right of defence, his duty of "accepting the penalty" is merely that of submitting to the sentence of the court. That is, he must not break jail nor evade payment of a fine. When the offender evades apprehension, he escapes all moral obligation; when he successfully contests prosecution, he likewise remains free from moral accountability; when he is convicted, his moral obligation is merely that of omitting actions from which in most cases he is physically restrained by the sheriff or the policeman. In a word, the moral obligation of a purely penal law is next to nothing, its moral manction, i.e., the effectiveness of the moral element in preventing violations, is practically nothing.

These facts create a strong presumption that the field of purely penal law is extremely limited. The objective reason why civil law carries moral obligation is found ultimately in human welfare. If the law he deprived, or all but deprived, of its moral element its efficacy for the promotion of human welfare is greatly, even fatally, weakened. Nevertheless, the assertion is sometimes made that in our day all civil laws are merely penal.

Some who use this language, do not mean what they seem to mean. They wish to assert the theory, sufficiently discussed above, that modern laws do not bind in conscience, inasmuch as modern legislators have not the proper intention. If this contention were sound civil legislation would not even rise to the dignity of purely penal enactments; for the latter do entail some moral obligation. Those who, using the phrase in its proper sense, declare that all modern civil legislation is purely penal, are happily neither numerous nor authoritative. According to the common opinion of moral theologians, the presumption is always in favor of complete obligation.{17} Like all other presumptions, this one can be overcome only by positive facts and arguments. With regard to any particular law, the burden of proof rests upon him who contends that it is purely penal.

As commonly given by theologians, there are three tests by which a civil law may be adjudged purely penal: First, the declaration of the legislator; second, the attitude of popular tradition and custom; third, the enactment of a penalty so severe that it is out of all proportion to the law's importance. However, the second and third of these criteria are not valid universally; for the custom may be socially injurious, and the heavy penalty may be designed to prevent unusual frequency of violation, not to indicate that the law is to be regarded as purely penal.

Bouquillon adds another restriction which seems to be fundamental. It is that no law can be reasonably regarded as purely penal unless the burden or penalty attached to its violation is specifically adapted to attain the end of the law.{18} The penalty must be such as to compensate for the failure of the law; it may not be merely coercive. Thus, heavy fines may offset the loss to the public treasury through the non-observance of tax laws. In such a case, the law might fairly be interpreted as purely penal. But fines and imprisonment would not adequately achieve the end of a traffic ordinance, i.e., safeguarding life and property. It is not easy to controvert this argument.


The final question concerning the degree of obligation attaching to civil laws, is whether their binding force depends upon popular acceptance or ratification. At first sight, an affirmative answer would seem to contradict the general doctrine of the foregoing pages, namely, that civil legislation binds in conscience. However, there is no necessary contradiction; for civil ordinances might conceivably not attain the complete character of laws until they had been ratified by the people. In that supposition, the people would constitute an essential part of the legislative authority. The obligation of individual citizens to obey a statute would begin when the latter had been formally accepted by the people as a whole. Only then would "the will of the legislator" have become fully manifest and formally effective.

Suarez informs us that in his time this was the commonly held opinion of the jurists.{19} He cites eight or ten important names, and admits that their view seems to have been anticipated by Aristotle. Their argument was briefly as follows: In order to make binding laws, the legislator must have both the authority and the will. In fact, he has neither. That he lacks moral power to legislate validly without the people's consent, is shown by the fact that his authority to govern and to make any laws at all is derived from the people; and they have given him legislative authority on condition that his ordinances shall become binding only when accepted by the people. That this condition is attached to the grant of authority, is evident from "the most ancient usage of the Roman people," and from the fact that popular acceptation is the best indication that a law really promotes the common good, just as the contrary attitude of the people proves the law to be socially harmful and thus without validity. The will to make binding laws without the consent of the people is wanting to the legislator because he cannot have a genuine intention of doing something for which he lacks authority.

In passing it is worthy of note that these ultra-democratic jurists all wrote before the beginning of the seventeenth century. This was the period when Catholic teaching supported political absolutism and political oppression generally, according to the perverted notions that still pass in many quarters as history. Major, one of the writers cited by Suarez, declared that the community is superior to the prince in all things that pertain to sovereignty; yet this doctrine gives many of us a disagreeable shock when it falls upon our ears in such a modernized version as "the people are the masters, the public official is their servant." It is likewise noteworthy that in support of their theory of popular acceptance of laws, these writers appeal to a principle which no one disputed in their day, namely, that rulers and legislators derive their authority from the people. The inference drawn from this principle by the jurists was not admitted by the moral theologians, but the principle itself was universally received.

Generally and per se, popular acceptance is not necessary for the validity of a civil law. Such is the unanimous teaching of the moral theologians. As stated by Suarez, the following are the main reasons which support this principle.{20} In every State that is not a pure democracy, the people have transferred supreme political power to the rulers and legislators, and have not retained the right of accepting or rejecting legislation. Secondly, the authority to legislate would be plainly futile if the people were morally free to obey or not to obey. Thirdly, usage shows that laws are held to be binding as soon as they have been regularly enacted and promulgated. In short, civil laws are obligatory without popular ratification, on account of the original grant of power to the rulers, on account of universal custom, and because this is necessary for the common good. It is not possible to overthrow this argument.

The general principle is subject, however, to certain qualifications and exceptions. Suarez notes that popular acceptance of the law is essential to its binding force when the people have attached that condition to the grant of legislative power. In the kingdom of Aragonia (a part of Medieval and benighted Spain, be it noted!) he says, the laws of the monarch do not become binding until they are ratified in public assemblies. On the same principle, certain enactments of legislative bodies in Switzerland, the United States, and New Zealand obtain the full force of law only when they have been approved by a popular referendum. Even in these States, the great majority of laws are recognized as valid as soon as they have been promulgated by the supreme legislative authority.

In the second place, Suarez points out that when a law is very frequently disregarded by the greater part of the people, the legislator may, through tacit consent, permit the law to be deprived of binding force. However, this is not an instance of direct popular authority over the law, but rather of revocation by the legislator. His tacit repeal of the law is indeed, occasioned by popular refusal to accept. In the third place, the law does not bind if it is not just, for an unjust law is no law at all. Fourthly, a law which is unreasonably burdensome to the people may sometimes lack obligatory force, -- at least when it is so harsh that it is tantamount to an unjust enactment. Finally, when the majority of the people disregard the law to such an extent and in such a way that its observance by a minority becomes detrimental to the State, it ceases to bind the individual citizen.

To sum up: The Catholic Church, as well as natural reason, teaches that civil law binds in conscience. The ultimate basis of this obligation is the natural law; the immediate basis is the authority of the State. Civil laws of grave importance are gravely obligatory, unless the legislator formally intends their binding force to be slight. The general teaching of moral theologians is that a law is not binding without at least the implicit intention of the legislator. Some civil laws may be purely penal, but their number is probably small. In general, civil laws are binding without popular ratification.

{1} Cf. Pope Leo XIII, The Christian Constitution of States, p. 2. of this volume.

{2} Cf. Bouquillon, Theologia Moralis Fundamentalis, no. 223.

{3} The greatest authority on law among Catholic theologians, Francisco Suarez, S.J., declares that this is the "common opinion of Catholics." His own defense of the proposition is summed up in three declarations: The civil legislator makes laws as the minister of God; the legislator is required by the divine and natural law to pass laws; this power and its exercise are necessary for the common good. De Legibus, lib. III, cap. 21.

{4} Cf. Cronin, The Science of Ethics, II, 599, 600.

{5} It is in this sense that St. Thomas speaks of civil law as a "participation in the eternal and natural law." Suarez draws the distinction clearly between a civil law conceived as obligatory because and when it contains or applies a specific precept of the natural law, or a necessary conclusion therefrom, and a civil law, or the whole body of civil law, conceived as obligatory because it is based on the general principle of the natural law which requires ordinances to be obeyed. He declares that if those who deny that the civil law binds in conscience held to the latter instead of the former conception, the dispute is perhaps merely one of language. They agree with him in principle. Idem, loc. cit.

{6} Op. cit., lib. 3, cap. 24, no. 2.

{7} Cf. Suarez, op. cit., lib. 3, cap. 27.

{8} Cf. Suarez, loc. cit.

{9} Cf. 8uarez, ibidem.

{10} Cf. Meyer, Institutiones Juris Naturalis, II, p. 569.

{11} Theologia Moralis Fundamentalis, no. 343.

{12} Theologia Moralis Fundamentalis, no. 223.

{13} Theologia Moralis, I, no. 211.

{14} Op. cit., bib. 3, cap. 27, no. 7.

{15} Cf. Sbater, Questions of Moral Theology, pp. 279-288.

{16} Cf. Suarez, op. cit., lib. 3, cap. 27, no. 3.

{17} Cf. Tanquerey, op. cit., no. 347.

{18} Op. cit., p. 353.

{19} Op. cit., lib. 3, cap. 19, no. 7.

{20} Op. cit., lib. 3, cap. 19, no. 7.

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