Summa Theologiae Moralis, vol. I: De Principiis

S. Th. I-II, q. 90, a. 1, 2, 3.

221. Notion of law. — Law, according to some, is named from ligando (q. 90, a. 1), because it is a rule that binds and necessitates to acting; according to others from legendo, because it is wont to be written on public tablets and read, and this is the custom because it is a rule of things to be read (Cicero, de Leg. I, 19). Hence

a) in the broadest sense it is the rule and measure according to which something ought to be done, i.e. according to which something is inclined to some end and is led to act or is drawn back from it; in this sense a law is also set before all irrational beings (physical law: Job XXVIII, 26; Prov. VIII, 27; Rom. VIII, 23);

b) in a less broad sense, law, because it is an ordinance of reason, regards the rational creature alone which alone shares in it rationally; and therefore it is the rule and measure of whatever acts are done in dependence on reason, even of arts, sciences, etc., prescribing either good or evil (Is. X, 1; — S. Th. q. 92, a. 1);

c) in a stricter sense it is the norm of human or moral acts, that they may be right, remote and material, and so every precept is called law (e. g. the precept of a father, of a syndicate, of a master);

d) in the strictest sense it is the rule of human acts given to a community, prescribing to it what is right (Rom. II, 12 sq.; Prov. VIII, 15).

Now in each sense it can be considered, both subjectively: 1° according as it is essentially in the legislator as in one who regulates, and so it is taken altogether properly; 2° according as it is participatively in subjects as in those regulated (Rom. VI, 23; II, 14); and 3° according as it is in the external sign (word, writing, book) expressing it (Lk. X, 26; John XV, 25; I Cor. XIV, 21); — and objectively for the object of the law and the very thing prescribed (e. g. the condition of a contract; John VII, 19; Rom. II, 13). In these latter ways it is taken in a less proper sense and derived from the first.

222. Definition of law. — Law, taken in the strictest and most proper sense, is usually defined as: an ordinance of reason for the common good, promulgated by him who has the care of the community (q. 90, a. 4).

In which definition is indicated:

1° The genus: ordinance or disposition to an end through proportionate means, i.e. not so much the very act of ordering as its term or the dictate constituted by it; but the ordinance is to be understood strictly so called and perfect, i.e. a) not merely directive but imperative and efficacious for obligation, and so it differs from counsel, permission, prayer, etc.; b) in itself firm, stable and perpetual.

2° The subject in which law essentially and originally resides: reason, both because it is the office of reason to order or dispose and direct to an end, and to command; and because law is the rule of human acts, but the rule and measure of these is reason, because they are human and proceed from it, and they are good insofar as they are conformed to it¹; therefore law is something constituted by reason, and therefore in Scripture it is called lamp, light, precept enlightening, judgment, word, discourse (Prov. VI, 23; Ps. XVIII, 9; CXVIII, 105; CXLVI, 20).

Since, however, it is an act of practical reason, it supposes the will regulated by it, which it intimates and expresses, and therefore it is everywhere in Scripture called the will of God (Ps. XXIX, 6, 8; XXXIX, 9; CII, 7; CXLII, 10; II Macc. I, 3; Mt. VII, 21).

Hence a) the essence of law can be conceived without knowing the legislator's will, as we shall see must be said of natural law; on the contrary b) the will of a superior, to be able to be law, must be regulated by reason or conformed to reason, otherwise it would be rather iniquity than law, as happens in a positive law commanding evil².

3° The object or end, by which it is distinguished from every other ordinance:

a) for the good, because law is the rule and measure of human acts, but human acts must tend to the last end, which is the happiness of human life and beatitude;

b) for the common good: for man is a part of a perfect community, by which he can arrive at happiness; but every part is ordered to the whole, as the imperfect to the perfect. Therefore law regards order to the common happiness, or to the last end as a good to be obtained in common.

Thus it is distinguished from the precept of a tyrant who commands solely for his own advantage, or from a simple precept and command which can also be given for the good of one or of some: for by law man is ordered as a part to a perfect community; but it would be disorder to order the good of the whole to the good of a part, since the part is for the whole and not conversely (III Kings XIII; Ezek. XXXIV, 8; Conc. Tol. VIII, can. 10).

Hence a law holds:

a) which was made from a depraved end (of the agent), provided it really tends to the common good (the end of the work);

b) which is harmful to some (e.g. to one province), as long as it tends to the good of the community, because the part is subordinated to the whole and the common good is to be preferred to the private, if they cannot both be obtained together;

c) which immediately fosters the good of one class of citizens, as of orphans, clerics, soldiers, etc., but is ultimately ordered to the common good, inasmuch as this requires that such persons be defended with special care and favor or be held in their duty.

4° The author and at the same time the subject to whom the law is imposed: by him who has the care of the community.

Thus it is distinguished from a mere precept which can be imposed on one person or even by a private person: for to order and procure the common good and to command a community cannot be done except by the community itself or by him who presides over it. But the community is understood as perfect, i.e. a society complete in itself which has an end complete in its own order and sufficient means to attain it (the whole human race under God, the Church or the State as regards the faithful or the citizens). Hence laws are made by those who have public and political power of jurisdiction to govern subjects (by declaring right, making laws, even punishing transgressors with grave penalties), whether supreme over the whole community, or derived or only over a part of the community (e.g. the Roman Pontiff and bishops); — but not by those who have only private dominative power or oeconomic power over an imperfect society, such as a father, husband, master, superior of a religious house, parish priest.

5° An essential condition: promulgated, i.e. announced to the community.

223. Law differs from precept. — Every law is a precept, but not conversely; hence as species differs from genus, so law differs from precept, and indeed

a) in end: law is directed immediately and primarily to the common good; precept can also be ordered uniquely to the private good alone of the one commanding or of the one commanded;

b) in author: the legislator is a public person enjoying public power of jurisdiction; the one commanding can be a private person having only private power;

c) in subject to whom it is imposed: law is imposed on a community as such (whether the whole community, or a certain group, i.e. determinate persons taken collectively, e.g. all minors, by reason of the common good); precept can also be imposed on private persons taken singly;

d) in stability or duration: for although law can also be made for a time and be abrogated, nevertheless by its own nature, like the community itself, it is perpetual, and indeed in threefold manner: on the part of the law because it lasts until it is abrogated; on the part of the legislator because it lasts even after his death or removal; on the part of the subjects because it binds not only those present but also those to come; — but precept can by its own nature be transitory, e.g. given for one or another day or act, and bind only those present, and, unless otherwise noted, expires by the death or departure of the one commanding;

e) in extension or place: for law, since it is made for a community, if this is local, does not bind outside its territory; precept can also be given to a person and then accompanies her everywhere.

With moralists, however, precept is often taken in a restricted sense and opposed to law, for that which is a mere precept and not law, i.e. for a particular or temporary obliging rule.

224. Causes of law. — There are four causes of law: 1° final: the common good; 2° efficient: the legislator himself; 3° material, i.e. the object or matter about which it deals and of which it prescribes; 4° formal (essence), i.e. the very ordinance or prescription and the manner in which it is made, in which can be considered its formation, promulgation, acceptance, and interpretation.

225. Remark. — Since laws are the rule of justice or of the just in general, and ought to establish what is just, it has been received by use that their complex should be called Right (Ius); hence we speak of natural, divine, human right, etc.

S. Th. I-II, q. 90, a. 4.

226. Promulgatio (afkondiging) is the public and authentic attestation of the existence of a law and its denouncement (bekendmaking) made to the community. It is called

1. authentic, i.e. solemnly or with a certain solemnity made by legitimate authority, namely by the legislator himself or by his authentic mandate, so that from the solemnity it may appear and cannot be doubted that the law comes forth from him in whom the power of the society resides ;

2. public, i.e. so carried out that the law is seen to be directed to the notice of the community and the community can easily come to its notice.

227. Promulgation is necessary in order that law oblige. — For a rule, in order to direct and bind someone, must be applied and imposed upon him, which is not done unless it becomes known to him (n. 203). But a law is not a rule made for one or another, but is enacted for a community. Therefore, in order that it oblige, it must become known to the community. Now it cannot become known to the community except by promulgation, whereby it is proposed in a manner that is public and proportionate to the community. Therefore a law does not oblige unless it be promulgated. — Otherwise the law would exist only in the superior as regulating, but not in the subjects as regulated.

Hence a) as long as it has not been promulgated, he who would otherwise know it to have been enacted is not bound by the law ;

b) a law doubtfully promulgated does not oblige : for liberty is not bound except by a certainly proved promulgation ; in case of doubt, namely, of sufficient promulgation the doubt : whether it is a law, but it does not suffice that the law itself be promulgated : that it is a law ;

c) promulgation differs from the divulgation of a law, which is sometimes so called and is, as it were, promulgation in the second act, whereby the law in fact comes to the notice of the subjects. Promulgation is necessary so that the law can be by divulgation : from the first there arises the objective obligation and in the external forum ; but knowledge of the law is also necessary so that the subjective obligation and in the forum of conscience may be present : for no one can sin by violating an obligation of which he is ignorant.

Promulgation nevertheless does not pertain to the essence of law ; for 1) it is the application of a rule and measure to what is regulated and measured, and so it supposes that the regulating or law is already constituted ; 2) without promulgation, the law, because it is the command of a superior, has force from his authority and is apt to direct and bind ; hence the obligation is not from promulgation as from a cause but as from a condition without which not¹. In the same way the application of fire to the combustible is a condition required for burning.

228. The manner of promulgation is not determined by natural law : any manner suffices, whether it be done by public reading in an assembly, or by the voice of a herald in the marketplace, or by insertion in a gazette, or by posting in a public place, even one, frequented, principal and central, provided that morally, in a human way, the law can easily come to the notice of the community, if not all at once, at least successively. More than sufficient is it if notification be made to individuals in particular, as in the natural law which God has inscribed in the minds of men to be known naturally.

229. Once promulgation is done, the law is perfect and complete, and of itself begins to oblige, unless its force be suspended for a time ; hence

a) if the legislator has determined some time at which the obligation shall begin, the law does not oblige before : for just as it depends on him whether the obligation exists or not, so whether it begins sooner or later ;

b) if he has not determined a time, in a community not much extended, e.g. a diocese, it obliges morally at once, since the promulgation can be known at once ;

c) in a society sufficiently extended, e.g. the universal Church, the law obliges in various regions successively, according to the time which is morally necessary in order that the notice of promulgation may commonly come to all by ordinary means ; whence it begins to oblige at once in the place where the promulgation was made and in nearby places, but it does not oblige at once everywhere, because it cannot be known at once by all in the whole territory.

sui amorem, requires necessarily and indispensably that it be proposed by the intellect to the will, since nothing is willed unless it be foreknown ; the reason or force moving the will is nevertheless not the proposal of the object but the goodness found in the object ; — so for this, that the law in the second act oblige to its observance, it is indeed indispensably required that the promulgation be proposed to the subjects : the reason or force of obliging is nevertheless not the promulgation itself or the proposal, but the authority which the law has in itself, inasmuch as it proceeds from the legislator as one carrying the person of the commonwealth ». — Nor does the principle of law stand in the way : Laws are instituted when they are promulgated, as the codex puts it, can. 8 § 1, from Justinian. For the sense is : by promulgation laws are definitively instituted and made complete as obliging in the second act, although they already are in the first. Moreover the intention of the codex is not to settle a scholastic question.

From which it follows that, if anyone before that time should learn the law by extraordinary means, he would not be bound to observe it.

S. Th. I-II, q. 91.

230. Law is divided first and immediately by reason of origin. And indeed by reason of origin together with subject, time and extension : one is eternal, supreme, independent and altogether universal ; another is temporal and particular, derived and participated from it in time. The latter, by reason of foundation or necessity together with promulgation, is divided into natural or necessary, which arises necessarily from the very essences of things and is promulgated by reason, and positive or free, which, added to natural law, has been posited beyond it by the free will of the legislator and needs special promulgation. These are distinguished also by reason of matter : for what is prescribed or forbidden by natural law is by its nature and necessarily good or evil ; what is prescribed and forbidden by positive law alone is therefore good or evil only because prescribed or forbidden. — But positive law by reason of its immediate author is divine (which by reason of time and perfection is old or new) or human, which is ecclesiastical or canonical, or civil or political, and by reason of origin, promulgation and expression is written or observed by use, i.e. introduced by custom.

Between natural law and divine positive law, mediates a hypothetical natural or natural-divine law, which namely partakes of both (more, however, of the natural than of the positive), because on some hypothesis which depends on the free will of God, the obligation arises necessarily : thus, revelation being given, the obligation of believing arises necessarily ; — between natural and human positive law mediates the law of nations, which in some way partakes of the necessity of natural law, and yet is introduced everywhere by universal custom.

S. Th. I-II, q. 92.

231. The effect of law in the subjects : 1) Mediate it is (insofar as it is from the force of the law) to make those to whom it is given good either simply and in every respect, as the law of charity does, or in a certain respect and in a certain matter, as other particular laws do : thus natural or divine law tend to this, that men become good by moral virtues proportioned to nature or by supernatural virtues¹ ; civil or ecclesiastical law, to this, that (at least as to outward acts) they be good citizens or good Christians.

2. Immediate, however, it is the obligation taken passively, or being obliged.

232. The proper acts of law, or its immediate effects in the legislator : Four are enumerated, not because they are elicited and produced by law, but because they are, as it were, integrated from them.

For law is about human acts, because it induces men to obey it as to certain acts : 1° as to acts good in genus, it has to prescribe or command ; 2° as to those evil in genus, to forbid or veto ; 3° as to indifferent acts, and for human law as to those that are little good or evil, to permit ; and so according to these three it has directive force ; 4° that by which it induces obedience to itself : is the fear of penalty, and therefore to punish is posited, and so law also has coercive force. Nor among these acts are numbered to oblige, which is the act necessarily following from the four aforementioned : from precept or prohibition follows the obligation of doing or avoiding, from permission in some cases arises the obligation of not hindering, from punishment in the judge the obligation of inflicting the penalty and in the subjects that of undergoing it ; — nor are to counsel and to reward numbered, because they are not proper to law but can also pertain to a private person.

233. The proper effect of law is obligation. It holds a middle among the various effects of law : the ultimate effect on the part of the legislator is obligation taken actively, or the force of binding which resides in the law, to which in the subjects, as the first effect, there corresponds the obligation taken passively, i.e. the very moral bond and necessity of obeying.

Now obligation is a moral necessity of doing or omitting something, categorical or imperative. It is called

1. moral or objective necessity, which belongs to a free being and by which something is necessary by a necessity of end (as a means or precept), so that without it the end is not obtained. Hence it is a moral bond, or practical necessity of choosing a means to an end, whereby on the supposition of the end such a means must necessarily be exhibited ; and so it is distinguished from a physical bond or physical necessity of subjective efficiency, both natural, which takes away liberty, and coercion, which also destroys the will ;

2. categorical or imperative, i.e. not only conditional, on the supposition of the end if one wishes to obtain it, but absolute, by which also the end itself is imposed. Hence obligation arises from a twofold necessity : from the absolute necessity of the act with respect to the ultimate end, and from the absolute necessity of this end. And so it is shown how it does not harm liberty : it binds the will inasmuch as the intellect proposes the end and the means, leaving intact the physical power of acting or not acting¹.

For obligation imports a twofold debt : one according to itself, and so the end is due ; another for the sake of something else, i.e. by which it is impossible to reach the end. And so « in debt is the order of exigence or necessity of something to which it is ordered » (I, q. 21, a. 1, ad 3).

Hence obligation, like morality, is an intrinsic habit and real order, or a transcendental relation :

a) in the obligating act, just as morality is a real order of conformity or non-conformity, so obligation is a real order of necessity to the object and the ultimate end (I-II, q. 99, a. 1) ;

b) in the obligated person, it is not only a relation of subjection to the person of the legislator, which is presupposed, but it adds a new relation by which he is subjected as to this or that prescribed thing (II-II, q. 16, a. 1).

Obligation therefore is the property of a human act according to which it is said to be necessarily to be posited or avoided for the ultimate end.

234. Division of law by reason of diverse obligation. — Obligation is diverse according as the law has directive or coercive force, and therefore by reason of the effect or of diverse obligation, one law is moral or preceptive which only directs and obliges to positing or omitting the act, another penal which only punishes him who omits the prescribed act or commits the forbidden one, another mixed which does both. Every law obliges in conscience to something which the legislator intends, otherwise it would not be a true law but a counsel ; but this is the difference between a purely preceptive and a purely penal law, that the first only obliges to positing or omitting the act established by law without inflicting a penalty on transgressors, namely : everyone do this, e.g. hear Mass ; the second obliges only to undergoing the penalty which the law requires of him who has not posited or has omitted the act established, namely : whoever has done this, e.g. who has hunted or fished before this day, shall pay a sum : since in positive law the whole obligation depends on the legislator, just as he may not oblige, so he may oblige more or less, or to the penalty alone. From these is distinguished a mixed law, which is preceptive or moral and also penal, namely, no one do this under penalty : this obliges in conscience to positing or omitting the act and at the same time to undergoing the penalty if it has not been posited or omitted ; but a merely penal law does not oblige in conscience to positing the act, but under penalty alone, to which however it binds in conscience².

By reason of form, a moral law is distinguished into affirmative or prescriptive, which imposes something to be done, and negative or prohibitive, which imposes something to be omitted ; the former obliges always but not for always, i.e. for some time only while it lasts ; the second obliges always and for always, i.e. for every time while it lasts³. And surely at every time we are bound to abstain from every evil, but not to do every good.

To the preceptive is reduced the permissive law, which prescribes the liberty of someone and forbids that he be hindered by others ; to the penal rather is reduced the irritant law, which compels by invalidating the act placed against the law.

235. A law is sanctioned when it is decreed to be sacred, i.e. inviolable ; hence sanction (bekrachtiging) is that which confirms and urges the law. Hence

1. with present-day jurists, sanction is not rarely called the act by which the king or the head of the commonwealth, by subscribed name, completes the law as it were and renders it firm, so that it can be promulgated and oblige ; hence this act precedes the promulgation and denouncement of the law ;

2. with moralists, it is rather the compulsion or penal coercion by which the law is confirmed and urged. It can be considered a) actively (as coercive force), namely the act or decree of the legislator by which an evil or penalty is established for those violating the law, or on the contrary a good or reward for those observing it ; and b) passively, namely the very penal compulsion or retribution of penalty, — or also the denial or concession of reward, — which is added to the law to confirm it and to compensate for the detriment

to be obtained by the mere threat and obligation of penalty. If it be objected that penalty supposes fault, they answer that it does not necessarily suppose fault in the forum of conscience, but suffices that there be juridical fault in the external forum and before human law : transgression of the order established by the law. So Suarez, Billuart, Noldin, Koch, Wernz, Prümmer, Maroto, Vermeersch, A. Janssens are said to hold. — That S. Thomas admitted merely penal laws is clear from II-II, q. 186, a. 9, ad 1.

that arises to the society from the violation of the law : the penalty, or also the reward, established by the legislator, in those who transgress it, or observe it.

236. Sanction differs from obligation : 1) the latter pertains to the directive force of the law, the former to the coercive force ; 2) the latter affects all subjects equally, the former first of itself and immediately only the transgressors of the law ; 3) the latter of itself is conformed to the inclination of the will to the good, the former of itself is repugnant to the will and is opposed to its natural inclination to the good ; 4) obligation is a binding to the good of order, sanction is the immediate privation of some good.

237. Sanction therefore is the complement of law and of obligation. Its end is threefold :

a) that the subjects be efficaciously moved to the observance of the law : for the mere knowledge of the law and the consciousness of obligation, inasmuch as man is now subject to the enticements of concupiscence, do not sufficiently induce him to keep the law ;

b) that the moral order be completed by the retribution of reward, and especially be restored by the retribution of penalty : for the order of justice demands that to the violation of the law a penalty be retributed to restore equality ; or also sometimes it asks that a reward be granted for the observance of the law ;

c) that the subjects, rebellious against the legislator, be subjected to his authority, because they are compelled against their will to undergo an evil, who have refused to subject themselves to a voluntary law. He who rises up against some order, says S. Thomas, must be repressed by the prince of the order (I-II, q. 87, a. 1).

Law therefore, in order that it may efficaciously move us and direct us to the end, must be confirmed by sanction.

Of which there is a twofold influence : 1) antecedently under a preventive respect, when, before the act is placed, by means of promise or threats it induces men to keep the law ; hence the aim of sanction is that the law be observed : so it is for correction ;

2. consequently under a retributive respect, when after the deed a reward or penalty is retributed to those acting well or ill : so it is for coercion.

Hence a) in the state of threat, the primary end of sanction is amendment or preservation, in one word : the avoidance of sin ; b) in the state of execution, the principal end is the restoration of order ; but it can have as a secondary end amendment.