Summa Theologiae Moralis, vol. I: De Principiis

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.