Summa Theologiae Moralis, vol. I: De Principiis

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.