ON THE POWER OF HUMAN LAW.

On the Matter of Human Law.

S. Th. I-II, q. 96, a. 1, 2, 3.

279. Principle. Law must be proportioned to the end which is the common good (n. 272), and therefore the matter about which civil law is concerned are all the acts whose positing or omission is useful for the common good, even those which are in themselves indifferent, inasmuch as they can be ordered to virtue and good, or to vice and evil. Now the common good consists of many things : 1) for society is constituted of many persons, 2) it is ordered to a good which consists in many affairs, to be procured through manifold actions, 3) it is instituted not that it may last for some moderate time, but that it may persevere for all time through the succession of citizens. Therefore law must procure the good not of some but of many, not in some one thing or action but in many, not for some time but in a manner of itself perpetual.

280. The acts useful for the common good are only :

1. Moral acts that are possible, i.e. not too difficult and burdensome, but accommodated to the powers of men (having regard to their frailty not only in general but also for their special condition and circumstances), otherwise the law would not be conformed to reason nor would it promote the public good, but would often be an occasion of sins, since it would be observed by few. Hence :

a) Heroic acts cannot be prescribed, except in an extraordinary public necessity (e.g. a law could prescribe to physicians in time of plague that they remain in the city), or unless someone has freely chosen a state to which it pertains.

b) Although any law can forbid any vices, it does not however forbid them all together or all vicious acts : for the law must be imposed on a multitude of men according to their condition, so that it is possible for them ; but in a multitude the greater part is imperfect, and therefore not all vices are forbidden, but only the graver ones, from which it is possible for the greater part of the multitude to abstain, and especially those which harm others, such as homicide, theft, etc., without whose prohibition society cannot be preserved.

2. Acts in some way external : for by these alone does man behave well or badly toward others constituting the city, for society arises from external relations ; whence only external and not merely internal acts are directly necessary or useful for the end, which is the peace by which citizens may tranquilly use their rights, and public prosperity.

Internal acts can however be prescribed indirectly and accidentally, inasmuch as they are joined with external ones and are manifested by them, e.g. if they are necessary so that the external acts be human, good, not feigned, etc. : for the law can prescribe only morally good acts.

3. Future acts, whence it is said : Law has no eyes backwards, and « The law provides only for the future ; it has no retroactive effect » (C. Civ., a. 2).

Thus a) according to directive force : since law is a rule of things to be done, by its nature it regards future acts, not past ones, which cannot be regulated ; for to prescribe, forbid, permit, or if irrevocable to invalidate past acts would be useless. Likewise b) also ordinarily according to coercive force : because namely it is very odious, past acts regularly cannot be punished, nor revocable ones invalidated, unless they were already forbidden by some law, or because of a great necessity of the common good : for in this case any good of a part can be exacted for the good of the whole, but it will be rather an imposition of a burden than a penalty. Hence the legislator cannot affect past acts, except a) in a penal law which imposes a penalty on an act already forbidden (at least by natural law) ; β) in a law establishing not a penalty but an incapacity, if the reason of the common good requires ; γ) in a law merely declaratory of a prior law.

281. The common good is manifold :

1. One thing civil society intends immediately, namely its own perfection and that of its members and temporal happiness, i.e. to institute, preserve, and perfect by promotion to better things, a good life in the multitude. To this pertain both the goods of society itself : constitution, government, administration, defense, and the relations of citizens to it and among themselves ; and the goods of the members : a) goods of the intellect : instruction in letters, sciences, human arts (which greatly contribute to private and public good) ; — b) goods of the will : to restrain delicts, oppose vices, promote virtues, and indeed all of them : for all that there are, just as they can be referred to private good, so also to the common good, just as all vices can be opposed to it, and therefore there is no virtue of whose acts the law cannot prescribe. It does not however prescribe about all the acts of all virtues, but only about those that are more orderly to the common good, either immediately as those that are done directly for the common good, or mediately as some are ordered by the legislator to good discipline, by which citizens are formed so that they preserve the common good of justice and peace. Hence human law does not prescribe except acts of justice, and acts of the other virtues inasmuch as they take on the character of justice ; — c) goods of the body : public health and due propagation ; — d) goods of fortune and those that contribute to the acquisition, transmission, abundance of things, industries, agriculture, and commerce.

2. Another thing society intends only mediately, namely eternal happiness, and therefore although it must procure temporal goods in such a way that they harm not the eternal, indeed that they procure them, it cannot however enact law immediately about spiritual things ; nor about mixed things unless it be in agreement with religious society.

282. Remark. — In all the aforesaid matters it can either instill natural and divine law, e.g. by compelling parents to nourish their minor children, and children to provide sustenance for their parents ; — or determine what it leaves indeterminate, e.g. by establishing conditions for succession in the goods of the deceased, or the manner of exercising justice ; — or impose what is conformed to it, e.g. prescription of goods, community or separation of goods in matrimony, rescission of a contract entered into by minors ; — or prescribe or forbid what it itself permits, e.g. with respect to fishing, the manufacture of liquors, or hunting ; — or urge all these things with an added penalty ; — or also impose conditions for the validity of acts established by it (e.g. with respect to contracts) ; in no way however can it contradict a superior law.

On the Obligation of Human Law.

S. Th. I-II, q. 96, a. 4.

283. Principle I. Civil law, as such, not only compels but obliges in conscience and before God, even under grave [matter]. It is certain.

It is proved : a) Natural law and divine law oblige in conscience. But these laws dictate that obedience is to be given to legitimately commanding superiors, and indeed even under grave [matter]. Therefore. — For legislative power is necessary for obtaining the end of society ; but the legislative power of a superior imports for the subjects the obligation in conscience of obeying just laws, otherwise the power of the superior could be thwarted and would not be a true power but a semblance of that same power ; therefore. — Furthermore, those things which are necessary for human society of themselves oblige under grave [matter] (cf. on natural law, n. 251, C).

b) From the Scriptures, according to which 1) civil law is enacted by a power granted by God (Rom. XIII, 1 ; Wis. VI, 4), imposed in the name of God by his ministers (Rom. XIII, 4, 6 ; Wis. VI, 5 ; I Pet. II, 13), and sanctioned by God (I Pet. II, 13) ; — therefore 2) they are to be obeyed from necessity (Rom. XIII, 1, 5), not for wrath and contention but for God and conscience (I Pet. II, 13 ; Rom. XIII, 5). For he who resists the minister, in that in which he is minister, is considered to resist the king ; — whence 3) he who resists the power of the prince, resists the very ordinance of God and acquires for himself a just penalty (Rom. XIII, 2).

284. Corollary. — Civil law obliges in conscience, even if the legislator does not think of such an obligation or does not care about it (even if he be infidel, as is clear from the instr. C. de Prop. F. to the vic. ap. Siam), or wishes to abstract from it, provided he does not altogether exclude the obligation and commands a true law. For he who commands, implicitly wills to oblige in conscience, both because, a precept being posited, from natural law and the will of God which follows spontaneously and naturally toward commanding superiors, the obligation follows, and because he often wills the observance in a better and more efficacious way, especially when it concerns things necessary for the common good.

Hence 1) in the case where the legislator intends truly to use his legislative power but does not admit the obligation in conscience or wishes to exclude it, of two contrary wills the predominant will prevails (n. 55) ; which is to be presumed and ordinarily is the will of enacting the law and obliging, as the nature of the thing demands ;

2. even a legislator who does not care about God or the obligation of conscience is not to be presumed to urge only the coercion of penalty, unless the contrary is clear or the case occurs in which the common good altogether requires the obligation in conscience ; — but on the contrary, unless of the contrary it is clear, it is to be presumed that he truly obliges, at least in matters of greater moment.

285. Principle II. Human law, in order that it oblige, must be just, i.e. establish just acts :

1. on the part of matter because it must be concerned with just things ; and therefore the prescribed acts must be just, both generally by justice in the broad sense, or honest (as all the virtues require), i.e. not contrary to superior law (natural, divine, ecclesiastical), and by justice in the strict sense, specifically just, i.e. not opposed to anyone's right ;

2. also on the part of the one enacting or of the manner because it is justly prescribed :

a) by reason of the end the prescribed acts must be useful not for a private but for the common good, as legal justice requires ; —

b) by reason of the author, they must be contained within the scope of his power as commutative justice requires : for subjects are bound to obey superiors in those things in which the superiors are [competent], as the soldier the commander in those things which pertain to war, and the servant the master in the works which pertain to servitude, etc. ;

— c) by reason of the form or prescription : they must be duly proportioned to the powers and faculties of all, so that in the distribution of honors and burdens the proportion of equality be preserved, as distributive justice requires.

If any one of these is lacking, according to this the law does not oblige.

286. An unjust law 1) on the part of matter in no way obliges, so that it cannot be commanded even to avoid death, because it is contrary to the divine good : for one must obey God rather than men (Acts V, 29. Cf. Exod. I, 17-21 ; enc. Qui pluribus 9 Nov. 1846 ; Quanta Cura 8 Dec. 1864) ; accidentally however it can be commanded if God or the Church yields its right and no longer urges its law, e.g. about hearing Mass if it were forbidden to soldiers by civil law ;

2. a law unjust on the part of the one enacting, as being contrary only to the human good, can be commanded but of itself does not oblige, because it is not a true law ; accidentally however it must be observed by the force of natural law because of some grave motive, to obtain namely a greater good or to avoid a greater evil.

Hence a) a law which is not useful for the common good can oblige accidentally, e.g. to avoid scandal, disturbance ; etc.

b) a law which is enacted against commutative justice by one who does not have the power but usurps it, and invades the commonwealth without right but holds it oppressed, if he does not yet peaceably possess the kingdom, does not oblige because of defect of power ; if however he possesses the kingdom, the laws which promote the common good oblige, because society cannot stand without a power of government which therefore is considered to be conferred by the usurper, nor without laws to which therefore the people tacitly acquiesces for the sake of the common good ; but the laws directly enacted against the legitimate prince do not oblige, because they violate a certain right¹.

c) a law injuring distributive justice (e.g. in taxes) does not oblige for the unjust and excessive part, except accidentally by reason of scandal, disturbance, etc. ; it obliges however for the just part, unless the excess of proportion in distributing the burdens were so great that the law itself would redound to the common detriment.

Note however that it is necessary that the injustice be morally certainly established, otherwise the presumption stands for the legislator, both because he holds the faculty of commanding and possesses it which cannot be taken from him because of doubt, and because he may have reasons hidden from the subjects, and because otherwise the subjects would take too great a license of transgressing laws, which can scarcely be so just that by some apparent reasons of injustice they cannot easily be called into doubt.

287. Some laws are moral, others penal. — Some civil laws are moral or preceptive, which strictly oblige in conscience to doing what is established by law, also sometimes under penalty, which in such cases are also penal and are called mixed ; some are merely penal, which oblige in conscience not to do what is established by law but only not to resist, in case of transgression, the infliction of the penalty and to undergo the penalty inflicted.

Merely penal laws can be recognized with certainty or probability : a) from the will of the legislator openly declaring it ; — b) from the tenor or form of the law, if it prescribes only the penalty : Whoever does this, shall pay such a fine ; on the contrary rather if it prescribes and at the same time imposes a penalty ; — c) from the matter of the law : if it is light and not concerning good morals, or if the end can easily be sufficiently obtained by obliging under penalty alone : for then the legislator is presumed so to oblige unless he has declared otherwise ; on the contrary if the matter is of great moment, pertaining to good morals and to restraining vices, or necessary for the peace or good of the commonwealth or to avoid a great inconvenience of it, especially if for obtaining observance of the law the obligation in conscience is necessary or expedient : for then the legislator is presumed to oblige in the more efficacious and more suitable manner for the commonwealth ; — d) somewhat from the nature or quantity of the established penalty, if it is not merely coercive but avails to compensate the defect of the act, as a fine, or if it is too great and not proportioned to the offense : for then the legislator is considered to increase the penalty because he obliges under penalty alone ; on the contrary if the penalty supposes fault or is purely coercive, as imprisonment ; — e) from common estimation, the interpretation of the wise, custom, etc.

According to the aforesaid rules, moral are to be considered : a) laws which confirm natural or divine law, e.g. those which forbid vices ; — b) laws which immediately contribute to the common good, e.g. those which regard contracts or prescribe duties pertaining to public functions, likewise the law of military service unless it is certainly unjust (cf. tr. on Justice) ; — c) laws which define rights, e.g. laws which determine ownership with respect to things found and lost, prescription of goods, the rights of authors, the law which grants to the father the use of the usufruct of the goods of the children or from the paternal goods grants the legitimate part to the children (at least ordinarily) ; — d) also of themselves laws of taxation, because these are necessary for the government of the commonwealth, and otherwise so the Scriptures teach (Mt. XXII, 15-22 ; Rom. XIII, 1-7), whence, unless the opposite is clear, in conscience they oblige at least the direct taxes that are immediately and directly imposed on persons at appointed times on account of goods, revenues, faculties, the exercise of art or business, and which also are usually exacted by coercive penalty ; but according to present-day law they do not oblige before they are defined and exacted (cf. tr. on Justice).

On the contrary probably merely penal are : a) laws and statutes which regard the external order of the community (lois et arrêtés de police) ; — b) laws about the cutting of wood or pasturing of animals in common forests or pastures ; likewise laws about hunting and fishing, except insofar as they establish a third party's right ; — c) laws which forbid extracting or bringing in certain goods (unless altogether necessary for the public good, e.g. in time of war) ; — d) laws which impose certain indirect taxes, which primarily and immediately reach goods and are paid occasionally for the transmission and change of rights or by the intervention of a tribunal (droits d'enregistrement, de mutation, de timbre, d'hypothèque, de greffe), either for merchandise transported (droits de douane ; d'entrée, de sortie, de transit), or for the manufacture of certain things (droits d'accises) or the cultivation of certain fruits (e.g. tobacco) ; — e) laws which forbid gambling and games, except for the part in which they forbid gambling games and their being established as an industry, since this is vicious and also harmful to others.

It is better however not to teach this publicly to the people, but to lead them to the observance of the law, especially because the violation of a merely penal law, especially if habitual, can be culpably accidental, either because on this occasion a third party's right is violated or scandal is given, or because charity toward oneself and one's own is violated, while by the penalty with its graver and great dangers, infamy, and damages one imprudently exposes oneself and one's family, or because someone will exercise violent resistance against those who by office are bound to apply the law or would be ready for it.

288. There are also civil laws which render invalid, which render acts invalid, either as a penalty for the offense, or for the protection of the agent or a third party, or for the common good, e.g. because of the danger of frauds, and to avoid lawsuits, and so that contracts be made with greater protection.

And indeed : a) sometimes acts are invalidated by the law alone without any judgment of a judge, if the conditions are lacking for the nature, the object or the existence of the act and therefore are as it were entirely required for validity, so that without them it cannot even be conceived, e.g. if there is a radical incapacity or inability to place acts, or if the forms required for the solemnity of donation between the living and of a testament are lacking ; then it is said in French law : nul par le fait même, radicalement nul, inexistant, non avenu ; — b) sometimes by law the invalidation is decreed, but so that for it the declaratory judgment of a judge is necessary, if the conditions are simply required for validity which are lacking ; in which case the act before the judgment of the judge remains valid, after the judgment it is invalid not only from the moment of the judgment but is considered never to have been placed ; for the judge does not render it null but only declares it to be null by the law itself. Then it is said in French law : nul de droit, nul de plein droit, simplement nul ; — c) sometimes by the law it is not annulled but it is decreed that it can be annulled by the judge, if it is in itself valid but the conditions required for lawfulness are lacking, in which case before the judgment of the judge it remains valid, after the judgment it is considered null but only from that moment, because not by the law but by the judge himself it is annulled. Thus it happens in French law when the act is injurious to the right either of the agent or of a third party (acte lésionnaire) : this is called rescindible (rescindable, par action en rescision) ; or when it is fraudulent (frauduleux), and this is called revocable (par action révocatoire).

Those laws which render acts invalid in conscience (as being determinative of rights), even more probably in the first case before the judgment of the judge.

Note however that laws which render invalid are not necessarily prohibitive (as a law rendering invalid a testament without the forms required for solemnity), but only if the act cannot be good unless it be valid, or if the motive which requires the invalidation also requires the prohibition (e.g. donations of parents beyond the legitimate), or if it is expressly or implicitly prohibited, by the addition of a special penalty beyond the invalidation.

289. Corollary. — From the aforesaid it follows that civil law obliges of itself under grave in grave matter, whenever namely it greatly contributes to an end of great moment ; unless however the legislator wishes only to oblige under light, or under penalty alone.

On the Subjects of Civil Law.

S. Th. I-II, q. 96, a. 5 and 6.

290. Principle. All and only the subjects of the power enacting the law, endowed with the habitual use of reason, for whom the law is enacted, are obliged by civil laws. — Hence according to S. Thomas : a) the perfect are also subject to human law inasmuch as it is the rule of human acts, because so also does natural and divine law establish, as the Church defined against the Beguards and Beguines, condemned in the 12th cent. at the Council of Vienne (a. 3) ; b) as to the coercive force of the law however, the just and virtuous are not subject, whose will accords with the law, but only the wicked, whose will is at variance with the law.

291. Personal and territorial laws. — Some laws are personal, which immediately affect persons and which are concerned principally with their status and capacity (lois qui composent le statut personnel : nationality, capacity, majority, filiation, état civil), accessorily with goods : to these probably pertain the laws about movable goods which are considered to adhere to persons. Others are territorial : which immediately affect the territory of the society and mediately persons inasmuch as they pertain to the territory ; among which are reckoned real laws which principally concern immovable goods and accessorily persons, laws which determine the forms and execution of acts because the acts of constituting and executing are according to the laws of the place in which they are constituted or ordered to execution, according to the principle : the place governs the act, laws regarding the external order and public tranquility of the territory and the security of persons and dominions (lois de police et de sûreté), to which pertain the laws which punish delicts.

292. Various persons are subject to the laws in various ways. — In the territory there can be :

1° Citizens or nationals, who are members of the society, either by birth, or by right, or by co-optation, or by annexation : a) those present in the territory are bound by all the laws ; — b) those absent are bound by personal laws (C. Civ. a. 3, § 3), but are not bound of themselves by territorial laws, e.g. about public order, or the form of contracts ; — c) they are bound however accidentally, if they are morally present by reason of goods which they possess in the territory for the real laws, or by reason of an action or omission which they exercise there, e.g. for the duties to be fulfilled toward society, or if by fiction of law they are present by reason of an offense committed against a fellow citizen : for this is considered to be done in the territory of the community.

2° Foreigners, who are not members of the community, but have a domicile or residence in the territory or pass through it. Now, because they are not members of the community, a) they are not bound by personal laws ; — nor b) of themselves by territorial laws ; — c) accidentally however they are bound, either 1) by reason of the common good, by the laws which regard order (C. Civ., a. 3, § 1) or which are specially enacted for them, or 2) by reason of the goods which they possess there for the real laws (C. Civ., a. 3, § 2), or 3) by reason of an act which they there exercise, do, or execute, by the laws which determine the form or execution of contracts (the place governs the act), or 4) by reason of a crime which they there commit, by the laws which establish a penalty ; — d) if they are absent they are bound only by the laws which concern goods possessed by them, or by reason of a crime committed against society (at least if they are not sufficiently punished by their own superior).

3° Exempt persons who by fiction of law are considered outside the territory and withdrawn from the jurisdiction of the place. They are a) by human law : the princes of other nations staying in it for any cause ; likewise their legates with theirs and domestics ; — b) by divine and ecclesiastical law : the Roman Pontiff as to all ; clerics and religious for those things which are opposed to their dignity and office (about which it pertains to the Church to judge) ; for other things today they are bound also directly by the force of these laws themselves.

4° Whether the legislator himself is subject to the law, is no longer a practical question, because there is no singular legislator ; whence all who have concurred in the making of the law are themselves subject to it. As to coercive force however, the very person of the king is exempt, who therefore is declared inviolable (Const. Belg., a. 63).

On the Fulfillment and Interpretation of Human Law.

S. Th. I-II, q. 96, a. 6 ; 97, a. 3, ad 2 ; II-II, q. 60, a. 5, ad 2 ; q. 120.

293. How law is to be fulfilled. — The human legislator directly does not prescribe the internal manner of virtue, but the preservation of social order ; whence he prescribes only the substance of the prescribed act and is content with the physical or external fulfillment, although he may intend the good of virtue. For the end of the precept does not fall under the precept ; nor therefore of itself the manner (extrinsic) of fulfilling the precept, unless the manner be of the substance of the precept (intrinsic). These things will be more fully explained, where ecclesiastical law is treated.

294. How law is to be interpreted. — But in order that it be rightly fulfilled as is fitting, the law often needs interpretation. For human law cannot be so perfectly expounded as to exclude every doubt about its sense, and therefore it often needs interpretation, either because of the weakness of human intellect, or because of the change of circumstances and customs.

Interpretation is the clearer determination of the mind or words of the legislator. Which by reason of value or efficacy is twofold : authoritative which is imposed with authority, and merely directive which can also be made by private persons. By reason however of cause or author it is fourfold :

1° Authentic or legal which is made authoritatively by the very ruler of the community as such, who is deservedly considered better to know the sense of the law and therefore enjoys the authority of interpreting : it is made by the legislator himself, or his successor or superior, or also by another specially designated for this (as is done in France by the Council of State), and has the same force as the law itself.

In our country art. 28 of the Belgian Constitution holds : « The interpretation of laws by way of authority belongs only to the legislative power. »

2° Usual which is made by the general observance of the community, or by the use and custom of the people, which therefore is called the best interpreter of laws. Moreover custom is either antecedent to the law, and this can avail for apprehending the sense of the law which according to custom is wont to be enacted ; — or concomitant is the manner of observing the law, and this avails as a sign and witness for discerning the mind of the legislator, because it exhibits the common sense of the subjects, which, although it is not authentic, nevertheless avails more than doctrinal interpretation because many agree in it ; — or subsequent which, given the conditions, can define or extend a pre-existing obligation just as it can introduce or remove it (as we have said n. 273) : then it is authoritative. In present-day civil law however the force of custom is not admitted for interpreting authoritative law, neither for introducing it nor for abrogating it.

3° Judicial which is made authoritatively by the judiciary power in order for a special case, namely applying the law to a particular fact : it is authoritative as to the litigants ; as to others it has only the private authority of the judge, so much the greater as he is possessed of greater knowledge and the interpretation is more often repeated, however greater other things being equal than if it were given by a private doctor.

4° Doctrinal which is not authoritative and therefore of itself not obligatory, but based on and directed by knowledge, and is made by private doctors or jurists according to the rules of the critical art. It is so much the greater as their number and excellence, and the arguments, are greater ; if all agree in the interpretation, it would be rash to despise it.

295. How manyfold interpretation is. — By reason of its nature or manner in which it is made, interpretation is simply declarative or comprehensive, which uniquely declares the words and sense of the law and adds or removes nothing, whether they declare more or less clearly, or even elucidate obscurities ; this can be made by all, even private persons ; — or supplementary which adds what is lacking to the sense and words of the law, and is either extensive, which adds an obligation previously not expressed or intended, and therefore needs promulgation, or restrictive, which alters and removes : this, just as the law itself, can be made by the authority of the legislator, and by custom, provided the consent of the legislator can be presumed.

296. Interpretation by epikeia. — Even the subject of the law can, in rare particular cases, make a certain quasi restrictive interpretation and licitly act contrary to the words of the law, when namely this would be harmful to the common good. For a law obliges only insofar as it ordinarily [leads] to the common good, and does not oblige if it falls short of this. It happens however that something is useful generally and in many cases, and in certain cases is harmful ; but because the legislator cannot foresee all cases (nor can the law enumerate all cases because it would become more obscure), the law is proposed according to what happens in many cases for the sake of the common good.

Therefore in the case where the observance of the law would be harmful to the common good, it is not to be observed ; for the legislator is rightly considered not to have wished to comprehend that case in the law, just as the law about closing the gates of a town would not be applied to a citizen who was very useful for defending the city, and the law which forbids carrying arms does not oblige him who is sought by an enemy for death.

The right judgment about the circumstances in which the law does not oblige, and the moral virtue inclining (under the direction of prudence) to right acting according to such a prudent judgment (which pertains to legal justice) is called epikeia (ἐπιείκεια i.e. equity, benignity, moderation), which interprets and judges and applies the laws according to what is equitable and good, i.e. according to what the reason of justice and common utility demands. « In theological use it designates a certain explanation of the law which is made from equity, a benign interpretation prudently moderating the law beyond the rigor of the words, by which it is judged that the law does not extend to some particular case, because of its special circumstances, although the words of the legislator, as they sound, contain even this case¹ ». It can be defined as : an equitable and benign interpretation of the law, or a prudent moderation and restriction, by which contrary to the words or sense of the law we follow the habitual mind of the legislator.

It is twofold : one in the broad sense does not exceed the limits of simple interpretation drawn from the circumstances, and has place not only in positive but also in natural law (e.g. deposits are to be returned) ; the other in the strict sense contains an emendation of the law and has place in human law alone. And the latter differs : a) from simple interpretation, which explains obscure words and inquires whether in this or that sense these words are to be taken, so that they comprise these or those cases : this follows the literal sense of the law and the mind which the legislator had, that departs from the words and the clear literal sense of the law and follows the mind which the legislator would have had, or reasonably ought to have had if he had foreseen the case ; — b) from a simple cessation of the end : for by this the law ceases in universal and indeed negatively or contradictorily because its end is lacking, but by epikeia it does not oblige in a particular case and indeed contrarily because the law is rendered harmful or too burdensome ; — c) from dispensation : for this is an act of jurisdiction by which the legislator looses the bond of the law in a special case to which otherwise the law would have to be applied ; but epikeia declares that such a case was never comprised in the law, although it is comprised in the words.

297. Epikeia in the strict sense has place whenever the law is 1) harmful or evil, e.g. if it cannot be observed without sin ; or 2) so much an impediment to good or very burdensome and too difficult that it can scarcely be imposed by an equitable legislator ; or 3) not sufficiently burdensome and difficult that it cannot be imposed, but nevertheless, the circumstances being considered and especially the ordinary manner of prescribing with moderation, it is presumed that such was not the mind of the legislator. But ordinarily it does not occur in laws which render invalid because of the common good.

The interpretation of epikeia can be made by any private person if the cause is evident ; — if it is doubtful, the superior must be approached, because it pertains to him to interpret what is useful or useless for the community, whence for such cases he has the power of dispensing : for it is disorderly to pass over the words of the law where the will of the legislator can be known with certainty, and in doubt about the lawfulness of the act, we must, as far as we morally can, arrive at certainty (n. 213 and 214, 4°) ; — but if it is a cause which does not admit of delay in having recourse to the superior and is sufficiently founded (so that there is positive doubt that the law still obliges), the very necessity dispenses, which has no law : for then it suffices that the law has probably ceased to oblige.

By present-day civil law however epikeia is equally admitted, except in the case where it would evidently harm directly the common good — namely, the legislator restricts it to the least possible, and judges it better to observe the law, even if it be burdensome to one or another, for the sake of the example to others.