Law

I. CONCEPT OF LAW

A. By law in the widest sense is understood that exact guide,
rule, or authoritative standard by which a being is moved to
action or held back from it. In this sense we speak of law even in
reference to creatures that are incapable of thinking or willing
and to inanimate matter. The Book of Proverbs (ch. viii) says of
Eternal Wisdom that it was present when God prepared the heavens
and when with a certain law and compass He enclosed the depths,
when He encompassed the sea with its bounds and set a law to the
waters that they should not pass their limits. Job (xxviii, 25
sqq.) lauds the wisdom of God Who made a weight for the winds and
weighed the water by measure, Who gave a law for the rain and a
way for the sounding storms.

Daily experience teaches that all things are driven by their own
nature to assume a determinate, constant attitude. Investigators
of the natural sciences hold it to be an established truth that
all nature is ruled by universal and constant laws and that the
object of the natural sciences is to search out these laws and to
make plain their reciprocal relations in all directions. All
bodies are subject, for example, to the law of inertia, i.e. they
persist in the condition of rest or motion in which they may be
until an external cause changes this condition. Kepler discovered
the laws according to which the planets move in elliptical orbits
around the sun, Newton the law of gravitation by which all bodies
attract in direct proportion to their mass and inversely as to the
square of the distance between them. The laws which govern light,
heat, and electricity are known today. Chemistry, biology, and
physiology have also their laws. The scientific formulae in which
scholars express these laws are only laws in so far as they state
what processes actually take place in the objects under
consideration, for law implies a practical rule according to which
things act. These scientific formulae exert of themselves no
influence on things; they simply state the condition in which
these things are. The laws of nature are nothing but the forces
and tendencies to a determinate, constant method of activity
implanted by the Creator in the nature of things, or the
unvarying, homogeneous activity itself which is the effect of that
tendency. The word law is used in this latter sense when it is
asserted that a natural law has been changed or suspended by a
miracle. For the miracle does not change the nature of things or
their constant tendency; the Divine power simply prevents the
things from producing their natural effect, or uses them as means
to attaining an effect surpassing their natural powers. The
natural tendency to a determinate manner of activity on the part
of creatures that have neither the power to think nor to will can
be called law for a twofold reason: first, because it forms the
decisive reason and the controlling guide for the activities of
such creatures, and consequently as regards irrational creatures
fulfills the task which devolves upon law in the strict sense as
regards rational beings; and further, because it is the expression
and the effect of a rational lawgiving will. Law is a principle of
regulation and must, like every regulation, be traced back to a
thinking and willing being. This thinking and willing being is the
Creator and Regulator of all things, God Himself. It may be said
that the natural forces and tendencies placed in the nature of
creatures, are themselves the law, the permanent expression of the
will of the Eternal Observer Who influences creatures and guides
them to their appointed ends, not by merely external influences
but by their innate inclinations and impulses.

B. In a stricter and more exact sense law is spoken of only in
reference to free beings endowed with reason. But even in this
sense the expression law is used sometimes with a wider, sometimes
with a more restricted meaning= By law are at times understood all
authoritative standards of the action of free, rational beings. In
this sense the rules of the arts, poetry, grammar, and even the
demands of fashion or etiquette are called laws. This is, however,
an inexact and exaggerated mode of expression. In the proper and
strict sense laws are the moral norms of action, binding in
conscience, set up for a public, self-governing community. This is
probably the original meaning of the word law, whence it was
gradually transformed to the other kinds of laws (natural laws,
laws of art). Law can in this sense be defined with St. Thomas
Aquinas (Summa Theologica I-II:90:4) as: A regulation in
accordance with reason promulgated by the head of a community for
the sake of the common welfare.

Law is first a regulation, i.e. a practical principle, which aims
at ordering the actions of the members of the community. To obtain
in any community a unified and systematized co-operation of all
there must be an authority that has the right to issue binding
rules as to the manner in which the members of the community are
to act. The law is such a binding rule and draws its constraining
or obligatory force from the will of the superior. Both because
the superior wills and so far as he wills, is law binding. Not
every regulation of the superior, however, is binding, but only
those in accordance with reason. Law is the criterion of
reasonable action and must, therefore, itself be reasonable. A law
not in accordance with reason is a contradiction. That the Divine
laws must of necessity be reasonable and just is self-evident, for
the will of God is essentially holy and just and can only command
what is in harmony with the Divine wisdom, justice, and holiness.
Human laws, however, must be subordinate to the Divine law, or at
least, must not contradict it, for human authority is only a
participation in the supreme Divine power of government, and it is
impossible that God could give human beings the right to issue
laws that are unreasonable and in contravention of His will.
Further, law must be advantageous to the common welfare. This is a
universally acknowledged principle. That the Divine laws are
advantageous to the common welfare needs no proof. The glory of
the Creator is, truly, the final goal of the Divine laws, but God
desires to attain this glory by the happiness of mankind. Human
laws must also be useful to the common welfare. For laws are
imposed upon the community as such, in order to guide it to its
goal: this goal, however, is the common welfare. Further, laws are
to regulate the members of the community. This can only come about
by all striving to attain a common goal. But this goal can be no
other than the common welfare. Consequently all laws must in some
way serve the common welfare. A law plainly useless or a fortiori
injurious to the community is no true law. It could have in view
only the benefit of private individuals and would consequently
subordinate the common welfare to the welfare of individuals, the
higher to the lower.

Law therefore is distinguished from a command or precept by this
essential application to the common welfare. Every law is a form
of command but not every command is a law. Every binding rule
which a superior or master gives to his subordinates is a command;
the command, however, is only a law when it is imposed upon the
community for the attainment of the common welfare. In addition,
the command can be given for an individual person or case. But law
is a permanent, authoritative standard for the community, and it
remains in force until it is annulled or set aside. Another
condition of law is that it should proceed from the representative
of the highest public authority, be this a single person, several
persons, or finally the totality of all the members of the
community, as in a democracy. For law is, as already said, a
binding rule which regulates the community for the attainment of
the common welfare. This regulation pertains either to the whole
community itself or to those persons in the highest position upon
whom devolves the guidance of the whole community. No order or
unity would be possible if private individuals had the liberty to
impose binding rules on others in regard to the common welfare.
This right must be reserved to the supreme head of the community.
The fact that law is an emanation of the highest authority, or is
issued by the presiding officer of the community by virtue of his
authority, is what distinguishes it from mere counsels, requests,
or admonitions, which presuppose no power of jurisdiction and can,
moreover, be addressed by private persons to others and even to
superiors. Laws, finally, must be promulgated, i.e. made known to
all. Law in the strict sense is imposed upon rational, free beings
as a controlling guide for their actions; but it can be such only
when it has been proclaimed to those subject to it. From this
arises the general axiom: Lex non promulgata non obligat--a law
which has not been promulgated is not binding. But it is not
absolutely necessary to promulgation that the law be made known to
every individual; it suffices if the law be proclaimed to the
community as such, so that it can come to the notice of all
members of the community. Besides, all laws do not require the
same kind of promulgation. At present, laws are considered
sufficiently promulgated when they are published in official
journals (State or imperial gazettes, law records, etc.)

In addition to the moral law as treated above, it is customary to
speak of moral laws in a wider sense. Thus it is said it is a
moral law that no one is willingly deceived, that no one lies
without a reason, that every one strives to learn the truth. But
it is only in an unreal and figurative sense that these laws are
called moral. They are in reality only the natural laws of the
human will. For although the will is free, it remains subject to
certain inborn tendencies and laws, within which bounds alone it
acts freely, and these laws are called moral only because they
bear on the activities of a free will. Therefore they are not
expressed by an imperative "must". They merely state that by
reason of inborn tendencies, men are accustomed to act in a given
way, and that such laws are observed even by those who have no
knowledge of them.

To understand still better the significance of moral law in the
strict sense, henceforth the sole sense intended in this article,
two conditions of such law should be considered. It exists first
in the intellect and will of the lawgiver. Before the lawgiver
issues the law he must apprehend it in his mind as a practical
principle, and at the same time perceive that it is a reasonable
standard of action for his subjects and one advantageous to the
common welfare. He must then have the will to make the observance
of this principle obligatory on those under him. Finally, he must
make known or intimate to those under him this principle or
authoritative standard as the expression of his will. Strictly
construed, legislation in the active sense consists in this last
act, the command of the superior to the inferiors. This command is
an act of the reason, but it necessarily presupposes the aforesaid
act of the will and receives from the latter its entire obligatory
force. The law, however, does not attain this obligatory force
until the moment it is made known or proclaimed to the community.
And this brings us to the point that the law can be considered
objectively, as it exists apart from the lawgiver. At this stage
law exists either in the mind of the subjects or in any permanent
token which preserves the memory of it, e.g. as found in a
collection of laws. Such outward tokens, however, are not
absolutely necessary to law. God has written the natural moral
law, at least in its most general outlines, in the hearts of all
men, and it is obligatory without any external token. Further, an
external, permanent token is not absolutely necessary for human
laws. It suffices if the law is made known to the subjects, and
such knowledge can be attained by oral tradition.

II. OBLIGATION IMPOSED BY LAW

Law (in the strict sense) and command are preeminently
distinguished from other authoritative standards of action,
inasmuch as they imply obligation. Law is a bond imposed upon the
subjects by which their will is bound or in some way brought under
compulsion in regard to the performance or the omission of
definite actions. Aristotle, therefore, said long ago that law has
a compelling force. And St. Paul (Rom., xiii, 1 sqq.) teaches that
we are bound to obey the ordinances of the authorities not only
through fear but also for conscience' sake. In what then does this
obligation which law imposes upon us consist? Modern ethical
systems which seek to construct a morality independent of God and
religion, are here confronted by an inexplicable riddle. The
utmost pains have been taken to construct a true obligation
without regard to God. According to Kant our reason itself is the
final source of obligation, it obliges us of itself, it is
nomothetic and autonomous, and the absolute form in which it
commands us is the categorical imperative. We are obliged to
fulfil the law only on account of itself or because it is the law
of our reason; to do something because another has commanded us is
not moral, even should this other be God. This view is entirely
untenable. We do not owe obedience to the laws of Church and State
because we bind ourselves thereto, but because their superior
authority obliges us. The child owes obedience to its parents not
because it engages so to do but because the authority of the
parents obliges it. Whoever asserts that man can bind only
himself, strikes at the root of all authority and asserts the
principle of anarchism. Authority is the right to issue to others
binding, obligatory regulations. Whoever maintains that none can
put more than himself under obligation denies, thereby, all
authority= What is said of human authority is equally valid of the
Divine authority. We owe adoration, obedience, and love to God,
not because we engage so to do, but because God obliges us by His
commands. The assertion that to do something because God has
commanded us is heteronomy (subjection to the law of another) and
therefore not moral, implies in principle the destruction of all
religion, which in its essence rests upon the subjection of the
creature to his Creator.

The adherents of the Kantian autonomy can also be asked whether
man binds himself of necessity or voluntarily? If voluntarily,
then he can at any moment annul this obligation; consequently, in
a practical sense, no obligation exists. If of necessity, the
question arises whence comes this necessity to bind oneself
unconditionally? To this question Kant has no answer to give. He
refers us to an undemonstrable and incomprehensible necessity. He
says: "All human reason is incapable of explaining how pure reason
may be practical (imposing obligation)....Thus, it is true, we do
not comprehend the practical, unconditioned necessity of the moral
imperative, but we do, however, comprehend its
incomprehensibility, which is all that can, in fairness, be
demanded from a philosophy that seeks to reach the principles
which mark the limit of human reason" ["Grundleg. zur Metaphys.
der Sitten", ed. Hartenstein, IV (1838), 91-93]. Kant, who without
hesitation sets aside all Christian mysteries, in this way imposes
upon us in philosophy a mystery of his own invention. Kant's views
contain a germ of truth, which, however, they distort until it can
no longer be recognized. In order that a human law may be
obligatory upon us we must have in ourselves from the beginning
the conviction that we are to do good and avoid evil, that we are
to obey rightful authority, etc. But the further question now
arises, whence do we receive this conviction? From God, our
Creator. Just as our whole being is an image of God, so also is
our reason with its powers and inborn tendencies an image of the
Divine Reason, and our cognitions which we involuntarily form in
consequence of natural tendency are a participation in the Divine
wisdom,--are, it may be said, a streaming in of the Divine light
into the created reason. This is, indeed, not to be so understood
as though we had innate ideas, but rather that the ability and
inclination are inborn in us by virtue of which we spontaneously
form universal concepts and principles, both in the theoretical
and practical order, and easily discern that in these practical
principles the will of the Supreme Director of all things
manifests itself.

The Kantian philosophy has now but few adherents; most champions
of independent ethics seek to explain the origin of duty by
experience and development. Typical of writers on ethics of this
school are the opinions of Herbert Spencer. This philosopher of
evolution believed that he had discovered already in animals,
principally in dogs, evidences of conscience, especially the
beginnings of the consciousness of duty, the idea of obligation.
This consciousness of duty is further developed in men by the
accumulation of experiences and inheritance. Duty presents itself
to us as a restraint of our actions. There are, however, several
varieties of such restraints. The inner restraint is developed by
induction, inasmuch as we discern by repeated experience that
certain actions have useful, others injurious results. In this way
we are attracted to the one, and frightened away from the other.
Added to this is the external restraint, the fear of evil results
or punishments which threaten us from without and are threefold in
form. In the earliest stages of development man has to abstain
from actions through fear of the anger of uncivilized associates
(social sanction). At a higher stage man must avoid many actions,
because such would be punished by a powerful and bold associate
who has succeeded in making himself chief (state sanction).
Finally, we have in addition the fear of the spirits of the dead,
especially of the dead chiefs, who, it was believed, lingered near
and still inflicted punishment upon many actions displeasing to
them (religious sanction). The external restraint, i.e. the fear
of punishment, created in mankind, as yet little developed, the
concept of compulsion, of obligation in relation to certain
actions. This concept originally arose only in regard to actions
which were quickly followed by external punishments. Gradually, by
association of ideas, it was also connected with other actions
until then performed or avoided purely on account of their natural
consequences. Through evolution, however, he goes on to say, the
idea of compulsion, owing only to confusion or false
generalization, tends to disappear and eventually is found only in
rare cases. Spencer claimed to have found, even today, here and
there men who regularly do good and avoid evil without any idea of
compulsion. Most modern writers on ethics, who do not hold to a
positive Christian point of view, adopt these Spencerian ideas,
e.g. Laas, von Gizycki, Paulsen, Leslie, Fouillee, and many
others. Spencer and his followers are nevertheless wrong, for
their explanation of duty rests on entirely untenable premises. It
presupposes that the animal has already a conscience, that man
does not differ essentially from the animal, that he has gradually
developed from a form of animal, that he possesses no essentially
higher spiritual powers, etc. Moreover, their explanation of duty
is meaningless. No one will assert of a man that he acts from duty
if he abstains from certain actions through fear of police
penalties, or the anger of his fellow-men. Besides, what is the
meaning of an obligation that is only an accidental product of
evolution, destined to disappear with the progress of the latter,
and for disregarding which we are responsible to no superior?

In contrast with these modern and untenable hypotheses the
Christian theistic conception of the world explained long since
the origin and nature of duty in a fully satisfactory manner. From
eternity there was present to the Spirit of God the plan of the
government of the world which He had resolved to create. This plan
of government is the eternal law (lex aeterna) according to which
God guides all things towards their final goal: the glorifying of
God and the eternal happiness of mankind. But the Creator does not
move creatures, as men do, simply by external force, by pressure,
or impact, and the like, but by tendencies and impulses which He
has implanted in creatures and, what is more, in each one
according to its individual nature. He guides irrational creatures
by blind impulses, inclinations, or instincts. He cannot, however,
guide in this way rational, free men, but only (as is suited to
man's nature) by moral laws which in the act of creation He
implanted in the human heart. As soon as man attains to the use of
reason he forms, as already indicated, on account of innate
predispositions and tendencies, the most general moral principles,
e.g. that man is to do good and avoid evil, that man is to commit
no injustice, etc. He also easily understands that these commands
do not depend on his own volition but express the will of a higher
power, which regulates and guides all things. By these commands
(the natural moral law) man shares in a rational manner in the
eternal law; they are the temporal expression of the eternal,
Divine law. The natural moral law is also the foundation and root
of the obligation of all positive laws. We recognize that we
cannot violate the natural moral law, and the positive laws that
are rooted in it, without acting in opposition to the will of God,
rebelling against our Creator and highest Master, offending Him,
turning away from our final end, and incurring the Divine
judgment. Thus man feels himself to be always and everywhere
bound, without losing his freedom in a physical sense, to the
order appointed him by God. He can do evil but he ought not. If of
his own will he violates God's law he brings guilt upon himself
and deserves punishment in the eyes of the all-wise, all-holy, and
absolutely just God. Obligation is this necessity, arising from
this knowledge, for the human will to do good and avoid evil.

III. CLASSIFICATION OF LAWS

A. The actual, direct effect of law is obligation. According to
the varieties of duty imposed, law is classified as: commanding,
prohibitive, permissive, and penal. Commanding laws (leges
affirmativae) make the performance of an action, of something
positive, obligatory; prohibitive laws (leges negativae), on the
other hand, make obligatory an omission. The principle holds good
for prohibitive laws, at least if they are absolute, like the
commands of the natural, moral law, ("Thou shalt not bear false
witness", "Thou shalt not commit adultery", etc.) that they are
always and for ever obligatory (leges negativae obligant semper et
pro semper--negative laws bind always and forever), i.e. it is
never permissible to perform the forbidden action. Commanding
laws, however, as the law that debts must be paid, always impose
an obligation, it is true, but not for ever (leges affirmativae
obligant semper, sed non pro semper--affirmative laws are binding
always but not forever), that is, they continue always to be laws
but they do not oblige one at every moment to the performance of
the action commanded, but only at a certain time and under certain
conditions. All laws which inflict penalties for violation of the
law are called penal, whether they themselves directly define the
manner and amount of penalty, or make it the duty of the judge to
inflict according to his judgment a just punishment. Laws purely
penal (leges mere poenales) are those which do not make an action
absolutely obligatory, but simply impose penalty in case one is
convicted of transgression. Thus they leave it, in a certain
sense, to the choice of the subject whether he will abstain from
the penal action, or whether, if the violation is proved against
him, he will submit to the penalty. The objection cannot be raised
that purely penal laws are not actual laws because they create no
bounden duty, for they oblige the violator of the law to bear the
punishment if the authorities apprehend and convict him= Whether a
law is a purely penal law or not is not so easy to decide in an
individual case. The decision depends on the will of the lawgiver
and also upon the general opinion and custom of a community.

B. In treating of promulgation a distinction has to be made
between natural moral law and positive law. The first is
proclaimed to all men by the natural light of reason; positive
laws are made known by special outward signs (word of mouth or
writing). The natural moral law is a law inseparable from the
nature of man; positive law, on the contrary, is not. In regard to
the origin or source of law, a distinction is made between Divine
and human laws according as they are issued directly by God
Himself or by men in virtue of the power granted them by God. If
man in issuing a law is simply the herald or messenger of God, the
law is not human but Divine. Thus the laws which Moses received
from God on Mount Sinai and proclaimed to the people of Israel
were not human but Divine laws. A distinction is further made
between the laws of Church and State according as they are issued
by the authorities of the State or of the Church. Laws are divided
as to origin into prescriptive and statute law. Prescriptive, or
customary, law includes those laws which do not come into
existence by direct decree of the lawgiving power, but by long
continued custom of the community. Yet every custom does not give
rise to a law or right. In order to become law a custom must be
universal or must, at least, be followed freely and with the
intention of raising it to law by a considerable part of the
population. It must further be a custom of long standing. Finally,
it must be useful to the common welfare, because this is an
essential requisite of every law. Custom receives its binding,
obligatory force from the tacit or legal approval of the lawgiver,
for every true law binds those upon whom it is imposed. Only he
can impose a binding obligation on a community on whom the
supervision of it or the power of jurisdiction over it devolves.
If the legislative power belongs to a people itself it can impose
obligation upon itself as a whole, if it has not this power the
obligation can only be formed with the consent of the lawgiver
(see CUSTOM).

A classification of law, as limited to law administered in the
courts, and familiar to Roman jurisprudence, is that of law in the
strict sense and equity (jus strictum et jus aequum et bonum).
Equity is often taken as synonymous with natural justice. In this
sense we say that equity forbids that anyone be judged unheard.
Frequently, however, we speak of equity only in reference to
positive laws. A human lawgiver is never able to foresee all the
individual cases to which his law will be applied. Consequently, a
law though just in general, may, taken literally, lead in some
unforeseen cases to results which agree neither with the intent of
the lawgiver nor with natural justice, but rather contravene them.
In such cases the law must be expounded not according to its
wording but according to the intent of the lawgiver and the
general principles of natural justice. A reasonable lawgiver could
not desire this law to be followed literally in cases where this
would entail a violation of the principles of natural justice. Law
in the strict sense (jus strictum) is, therefore, positive law in
its literal interpretation; equity, on the contrary, consists of
the principles of natural justice so far as they are used to
explain or correct a positive human law if this is not in harmony
with the former. For this reason Aristotle (Ethica Nicomachea, V,
x) calls equity the correction (epanorthoma) of statute or written
law.

REFERENCES

ST. THOMAS, Summa Theologica, I-II:90 sqq.; SUAREZ, De legibus et
legislatore Deo, I; LAYMANN, Theologia moralis, I, tract. iv;
BOUQUILLON, Theologia fundamentalis, no. 52 sqq.; TAPARELLI,
Saggio teoretico di diritto naturale, I, s. 93 sqq.

V. CATHREIN
Transcribed by John F. Wagner Jr.

In Gratitude to Msgr. J. Emmett Murphy


http://www.knight.org/advent

From the Catholic Encyclopedia, copyright � 1913 by the
Encyclopedia Press, Inc. Electronic version copyright � 1996 by
New Advent, Inc.

Taken from the New Advent Web Page (www.knight.org/advent).

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