ON THE MUTABILITY OF HUMAN LAW.

S. Th. I-II, q. 97.

298. Human law is mutable. — Human law, although negatively it is perpetual because of itself it is stable and always lasts like the community, positively however it is not perpetual, because what it prescribes by its nature is not necessary : « in mutable things, says S. Thomas, there cannot be something altogether immutably enduring » (a. 1, ad 2).

Whence human law can be changed either a) on the part of the legislator who wishes gradually to lead the subjects to a greater good ; or b) on the part of the matter which, because of the diverse circumstances of times and places, is less useful for the end ; or c) on the part of the subjects for whom, according to their diverse conditions, diverse laws are expedient (Cf. for ecclesiastical law, C. Lat. IV, c. 26 ; and Trid. sess. 14, c. 1 and 2 ; sess. 21, c. 2).

They are not however to be changed easily (especially the organic laws of political and administrative law), even when some improvement is possible. It is proved :

Human law is rightly changed only insofar as by its change provision is made for the common utility. But the very change of law of itself is harmful and brings detriment to the common good : « for the observance of laws, says S. Thomas (a. 2), custom avails very much, so much that those things which are done against common custom, even if they are in themselves lighter, seem graver ; whence when a law is changed, the constraining force of the law is diminished, inasmuch as custom is removed ». Therefore human law must never be changed, unless only as much is recompensed to the common utility as is derogated by the change itself. — Which happens in 2 cases :

a) either from this, that some very great and most evident utility results from the new law ;

b) or from this, that there is the greatest necessity from this, that the customary law either contains manifest iniquity or its observance is very harmful.

299. Human law can be changed in a twofold way :

1. So that the law itself ceases and we are excused in general : either intrinsically by total cessation of the end (the reason of the law ceasing, its disposition ceases, and the end ceasing, the precept ceases), or extrinsically, both by revocation i.e. by abrogation and derogation, and by contrary custom (with the consent of the legislator) ; in present-day law however custom is not admitted, nor the cessation of the end unless expressly indicated by the law, nor is it necessary in present-day society : for in these cases the abrogation of the law itself can be proposed by the members of the legislative body.

2. So that in some way the obligation of the law alone ceases (or at least is not applied) in a determinate case, and we are excused from the transgression of the law, whether formally and subjectively only, which is done by ignorance, or also materially and objectively, which is done intrinsically : by impotence (which is judged by epikeia), extrinsically : by dispensation, to which pertains privilege.

However in present-day law a) dispensation cannot be validly granted except in rare cases determined by it, b) ordinarily ignorance of law is not admitted in the external forum, because all are considered to apply diligence to know the laws ; whence although one who is ignorant is innocent before God, he can be held as guilty before the judge : then there is juridical fault, and if the law establishes a penalty, after the judgment of the judge there is an obligation to undergo it by reason of preserving the external order and the common good, otherwise all would say that they are ignorant of the laws.

All of which will be more evident from the application of these to ecclesiastical law. Of which will be said below.

Section C.

ON THE LAWS THAT GOVERN SUPERNATURAL ACTS.

FIFTH PART.

ON DIVINE LAW.

S. Th. I-II, q. 91, a. 4 and 5.

300. Divine law is an ordinance of divine reason which, by the free and positive will of God, was immediately enacted and promulgated to direct men to a supernatural end. — It is morally necessary

1° even before the sin of Adam, because of the supernatural end to which man must be directed by law : for if the end did not exceed the proportion of natural powers, natural law and human law, proportioned to natural powers, would suffice ; but now it is necessary (by a necessity of fittingness) that man be directed to that end by a law given by God ;

2° after sin, moreover a) because of the uncertainty of human judgment (especially about contingent and particular things), so that man might know without hesitation and error what is to be done and avoided ;

b) to order by positive law the interior acts of men : for human law does not directly prescribe except exterior acts ; but for the perfection of virtue it is required that in both man be upright ;

c) to forbid by positive law all sins : for human law cannot punish or forbid all evils (Ps. CXVIII, 33).

« And these four causes are touched upon Ps. XVIII, 8, where it is said : The law of the Lord is immaculate, i.e. permitting no foulness of sin ; converting souls, because it directs not only exterior but also interior acts ; the testimony of the Lord is faithful, because of the certainty of truth and rectitude ; giving wisdom to little ones, inasmuch as it orders man to a supernatural end and to the divine » (a. 4).

301. How manyfold is divine law. — A certain divine law was given to Adam in paradise for the whole human race. After sin however there were two : the old or Mosaic law, manifested by Moses to the Israelites alone ; the new or Christian law, enacted by Christ for the whole human race (C. Trid. sess. 6, can. 19 and 20).

They are distinguished not as two species, but as the imperfect and the perfect in the same species ; and they are as child and man (Gal. IV), way and term, preparation and consummation, as is clear : 1) from the end to which they directly ordered¹, which is the sensible and earthly common good in the Old Law (the temporal happiness of the Jewish people), the spiritual and heavenly good itself in the new (eternal happiness) ; 2) from the justice which they place in human acts, which the old law chiefly effected as to exterior acts² which alone it could efficaciously restrain, the new more as to interior ones, which it efficaciously directs ; 3) from the manner in which it induces to its observance, namely the old by the fear of penalties, the new by the love which is given by the grace of Christ.

Before Moses, to the supernatural end, men were led by natural law alone, hypothetically or natural-divine : for revelation having been made to Adam, both of the supernatural end and of the future Redeemer, by reason they could know that to that end they must tend through Christ by faith, hope, and charity, and by acts of the virtues³.