Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

It is certain that not all human laws oblige under pain of mortal sin to their observance; because neither do the divine laws themselves impose such an obligation; for petty theft, say of a denarius or an as, is not judged to be mortal on account of the lightness of the matter, although every theft is forbidden both by divine and by human law. Much less, therefore, must every human law be judged to obligate under pain of mortal sin. There remains, therefore, to be determined whether at least some human laws can bind the conscience under pain of mortal sin.

Note 2. It was the erroneous assertion of various Heretics that no human laws can bind in the forum of conscience, nor is one who transgresses them guilty of fault before God. Thus above all taught the Waldenses, as Guy affirms in his book On Heresies. The same error was renewed by John Wyclif and John Hus, as Bellarmine testifies in book 4, On the Supreme Pontiff, chapter 11; Calvin followed them in book 1 of the Institutes, chapter 15 and following, where although he concedes that Prelates and political Magistrates can prescribe certain laws for the preservation of discipline and peace among citizens, he nevertheless denies that they bind in conscience, since conscience, he says, is subject to God alone, and therefore can be bound or coerced only by His law. John Gerson does not seem far removed from this error: in his Treatise On the Spiritual Life, lecture 4, asserting that God alone has the authority to bind in conscience: whence although he admits that human laws bind in conscience, he nevertheless contends that this power does not belong to them by reason of human authority, but only of divine; so that Legislators, in enacting laws, merely declare the obligations which God imposes: while they themselves prescribe no obligation in the forum of conscience: he offers as an example of this assertion the sick, who are bound in conscience to obey their physicians, not because physicians have the authority to command, but because they declare that to which the sick man is bound by natural and divine law.

Note 3. No slight controversy is stirred among Theologians, whether human laws sometimes oblige to their observance even at the expense of life: in resolving which difficulty there are two extremely opposed opinions: one indeed, that of Almain in his Moral Questions, treatise 1, chapter 3, conclusion 4, denying that human law ever obliges to its observance at the expense of life: the other, however, that of Adrian, in book 4, question 3, On the Keys, asserting that every human law which binds under mortal sin must be kept in every eventuality, even with danger to life, unless some law intervenes out of the benignity of the Legislator, which does not expressly import such an obligation. Between these two extremely opposed opinions a Third takes the middle ground, affirming that human law sometimes obliges with peril and expense of life: yet not always. These things premised, let there be

First Conclusion. — HUMAN LAWS, BOTH CIVIL AND ECCLESIASTICAL, CAN BIND IN THE FORUM OF CONSCIENCE, SO THAT THEIR TRANSGRESSION IS GUILTY BEFORE GOD.

Proof 1. of Civil Laws from Scripture; for it is said in 1 Peter 2: Be ye subject therefore to every human creature for God's sake: whether it be to the king as excelling; or to governors as sent by him for the punishment of evildoers… For so is the will of God. In 2 Peter 1 [2 Peter 2] it is said that those who despise government are reserved unto the day of judgment to be tormented. And to the Romans 13: He that resisteth the power, resisteth the ordinance of God; and they that resist, purchase to themselves damnation. Which Chrysostom and other Interprets there understand of damnation also before God. And verse 5: Wherefore be subject of necessity, not only for wrath, but also for conscience' sake. He adds there, verse 6, that Princes are God's Ministers, whence he who resists them resists God; and therefore offends God.

The same is proved of Ecclesiastical Laws; first indeed by the authority of the Council of Constance, sessions 8 and 15, where the errors of Wyclif and John Hus are condemned, denying that any human law, whether Ecclesiastical or Civil, binds in conscience. This very thing was defined in the Council of Trent, session 7, canon 8, in these words: if anyone shall say that the baptized are free from all the precepts of holy Church, whether written or handed down, so that they are not bound to observe them: let him be anathema. — The same is evident from various testimonies of Scripture; for Christ pronounces thus: if he will not hear the Church, let him be to thee as the heathen and publican, where Chrysostom, homily 16, remarks how He set the publican forth as an example of supreme wickedness. Therefore not to obey the precepts of the Church is supreme wickedness. The same Christ says in Luke 10: He that despiseth you, despiseth me. And Paul to the Hebrews 13: Obey your prelates, and be subject to them: for they watch as being to render an account of your souls. Finally the same Apostle says in 1 Corinthians 7: I command, not I, but the Lord. And Acts 15: the Apostles say: It hath seemed good to the Holy Ghost and to us, to lay no further burden upon you than these necessary things, etc. In which places is designated the special power of Ecclesiastical laws to bind in the forum of conscience, as they proceed from human Legislators, otherwise Paul would not say: I command, not I, but the Lord, nor would the Apostles say: It hath seemed good to the Holy Ghost and to us. Nor does this last place contain only counsel, as the Heretics will have it: for those words, burden, and necessary things, indicate that a precept binding in conscience is contained therein.

Both parts are proved by reason: First indeed, every law which is enacted by an authority derived from God can bind in conscience: but laws both Ecclesiastical and Political are enacted by an authority derived from God; and consequently they can bind in conscience. The major stands: for by this reason the Old and New Laws are held to bind in conscience, because they were enacted and promulgated by divine authority, or emanating from God. The minor also is clear from the foregoing texts of Scripture, whereby both Ecclesiastical and Civil power are declared to be delivered to men by God. Hence Proverbs 8, God Himself says: By me kings reign, and lawgivers decree just things. — Second, the power of binding in conscience is found in every imperfect community, which consists of husband, wife, children, and servants: therefore much more ought it to be found in a perfect community, which consists either of Prelates and faithful subjects, or of Prince, Magistrate, and Citizens. The antecedent is plain, both from Deuteronomy 21, where it is commanded that the disobedient and stubborn son be punished with death. And from the Apostle to the Ephesians 5, where he admonishes wives to be subject to their husbands. And from 1 Peter 2, where servants are commanded to be bound to obey their masters. The consequence also is clear from the fact that it is a greater debt to obey the Prince for the good of the Republic, than the father of a family for the good of one house; because the more universal a good is, the more divine it is. — Third, if human law, whether Ecclesiastical or Civil, could not bind men unto guilt, and in the forum of conscience, it would follow that it would most often be frustrated of its effect; for it often happens that one can violate a law without peril of incurring the prescribed penalty; and consequently, if he were not held to keep it from conscience, not infrequently he could transgress it.

You will say 1: He alone can bind unto guilt, especially mortal, who can deprive man of grace, who has the power of binding in the forum of conscience: but no man can deprive another of grace; just as none can infuse grace into him: likewise the Legislator, at least the Civil one, has not the power of binding and loosing in the forum of conscience: therefore either no law can bind in conscience, or at least Civil and Political ones cannot. — I answer to the major, that only its first part is true concerning the primary and per se privative power of grace, which belongs to God alone: but not concerning the secondary power, and that by reason of a decree or statute enacted by an authority derived from God; he who transgresses that decree, by that voluntary transgression deprives himself of grace meritoriously: but he is deprived of the same efficiently by God, who does not wish further to preserve grace in the soul of the man transgressing the law. To the other part of the major truly I say that he alone can enact a law in whom is the power of binding and loosing in the forum of conscience: either judicial, such as is exercised through acts of the keys, and through which sins are remitted or retained: or imperative and constitutive of decree, whose observance makes the act good: but whose non-observance makes it evil.

You will say 2: The power of an inferior Legislator cannot induce obligation in the judgment and forum of a superior power: but the forum of conscience is the forum of a superior power, namely God: therefore the power of a human Legislator cannot induce obligation in the forum of conscience. The minor is plain: The major also seems manifest: for ordinary judges cannot induce obligation in the judgment of a superior Prince, nor Bishops in the judgment of the Pope: because doubtless their power is exceeded by the judgment of a superior power. — I answer, distinguishing the major: the power of an inferior Legislator cannot induce obligation in the forum of a superior power against, or beyond the order of the superior power: this I concede: but that it stands beneath the order of the superior power, I deny the major: and to its proof the answer is made in the same way, namely that ordinary Judges, or Bishops, cannot do this against the order of the Prince, or Pontiff, but well indeed as standing beneath their order: just as if a Prince should give an ordinary Judge the power to enact a law binding in his own forum: so however it happens in our case: for by the very fact that human law is just, it stands beneath the order of natural Law, or divine, from which it participates the power of binding even in the divine forum, which is the forum of conscience.

You will say 3: The power of secular Princes is merely temporal and political: therefore it cannot extend itself to anything spiritual: nor consequently bind unto guilt, and in the forum of conscience. — I answer, that the power of secular Princes is called temporal by reason of its object, because considered in itself it is wholly about temporal persons, things, and actions; by reason however of the obligation which it induces, it can be called spiritual, and bind in conscience: for although per se and primarily it regards the temporal good of the Republic, and does not per se and primarily intend to bind consciences under the penalty of eternal damnation, but only to command something for promoting such a good under a temporal penalty proportioned to attaining its end: nevertheless by consequence, because it commands this as standing beneath the order of divine power, and in virtue of that power it can bind in the forum of conscience as to guilt and eternal penalty, it obliges unto guilt and in the forum of conscience.

Second Conclusion. — SOMETIMES BOTH KINDS OF LAWS, ECCLESIASTICAL AS WELL AS CIVIL, OBLIGATE UNDER PAIN OF MORTAL SIN.

Of Ecclesiastical laws indeed this stands: for it is agreed among all, that many are the Ecclesiastical laws which oblige to their observance under pain of mortal sin: such is the law of the quadragesimal fast, of making annual confession, of communion at Easter, etc.

For those in political authority the same truth is likewise evident from the Apostle, Rom. 13, where he says that they who resist the higher power acquire for themselves damnation; which the Holy Interpreters understand there of eternal damnation. But eternal damnation is incurred only on account of mortal sin; therefore human law, even political, can sometimes bind under mortal guilt. That this is so Saint Augustine confirms in his Epistle 50., which is to Boniface, count and prefect of the imperial armies, who, when he had asked Augustine whether with a safe conscience he could compel the Donatist heretics by force of arms so that, according to the imperial edicts, they should receive themselves into the bosom of the Catholic Church, answers that Saint Augustine judged this not only licit but even most necessary.

Since, he says, many have been corrected by those laws and are corrected daily, and give thanks that they have been corrected and delivered from that furious perdition. And those who hated now love, and as much as they detested the most salutary laws as troublesome to themselves while in their madness, so much do they rejoice when health has been restored.

Next he subjoins:

When Emperors establish many laws for falsehood against truth, they are proved good believers and are crowned as persevering. But when for truth against falsehood they establish good laws, those who know are frightened and those who understand are corrected. Whoever therefore does not wish to obey the laws of Emperors which are enacted against the truth of God acquires a great reward. But whoever does not wish to obey the laws of Emperors which are enacted for the truth of God acquires a great punishment, namely before God, before whom a great punishment is incurred only on account of mortal sin.

But by what means it can be discerned when human laws bind under venial or under mortal sin, here four rules are to be observed. First. That law is judged to bind under mortal sin which is held to be such by the consent and custom of the universal Church, as the law of keeping the quadragesimal fast by those who are detained by neither labor nor infirmity nor other excusing impediments. — The Second Rule: when human law commands or forbids something that is grave and most conducive to the common good, it is judged to bind under mortal sin; hence no human law can bind under mortal sin in light matter: because the obliging force of human law is derived either from natural law or from divine law; but God by his natural or divine law never imposes an obligation unto mortal fault when the matter is light, lest all be tempted; therefore neither can the human Legislator bind under mortal sin unless the matter be grave. Hence the human Legislator cannot command a light thing, and one of least moment, under mortal sin; because if human law is to bind, it must be just; and although the reason for commanding a light thing may be just, yet it is not just to command it under mortal sin, just as neither is it a just reason to command a grave thing under venial sin only. Wherefore Prelates cannot command light things under pain of excommunication. Therefore in the chapter Nomo Episcoporum, cause 11, question 3, from the Council of Meaux, chapter 56, it is established that the sentence of anathema unto retention unto death is to be held, and ought to be imposed only for a mortal crime, and upon those who could not otherwise be corrected. — The Third Rule is, that a law is judged to bind under mortal sin when it commands or forbids something under a graver penalty, e.g. of death, mutilation, excommunication, irregularity; for the severity of the penalty is an argument that the thing commanded is most grave. — Finally the Fourth Rule is, that a law binds under mortal sin when the thing commanded, although light in respect of the reason of its object and matter, is nevertheless grave in respect of the end which the Legislator intends, and to which the law or precept is ordered. Hence, because it is said 1. ad Tim. 2. that the end of the precept is charity, that matter is judged grave which is necessary for the love of God or of neighbor. Likewise, because law is ordered to the common good, that will be grave matter which is necessary for establishing and defending the good of the Republic or of the community, although in itself it be light: whence, since in Religious Orders it is forbidden that the affairs of a Monastery or Convent be divulged to seculars, although this divulging may seem light in some by reason of the matter, nevertheless it is grave by reason of the common good.

Third Conclusion. — Human laws do not always and regularly oblige to their observance at the expense of life, and still less at the peril of graver loss. The reason is, because not even merely positive divine laws are judged to bind thus, unless God, who by his supreme authority can command and bind as he wills, signify otherwise, or his will be otherwise made known from elsewhere: accordingly Christ the Lord in Matthew 12 relates the deed of David who in 1 Reg. chapter 21 ate the loaves of proposition out of necessity, although it was permitted only to Priests to eat them; he does not condemn that deed, nay rather he uses it to blunt the calumny of the Pharisees whereby they were carping at Christ's Disciples because on the Sabbath day they plucked the ears of corn and ate; and in Luke 14 Christ the Lord likewise demonstrates to the Pharisees that it is lawful on the Sabbath day to draw out an ass which had fallen into a pit, although otherwise all work is forbidden to be done on the Sabbath day.

Fourth Conclusion. — Human laws bind at the expense of life when the observance of them conduces more to the common good than the death of one man; but otherwise when the life of a man is of more worth than the observance of a human law.

The first part of the assertion is evident; because man is a part of the Republic not only as regards those things which he possesses, but also as regards himself: therefore where the public good must be preserved and defended, he is bound to expose his life to danger; for since in the Republic there is power necessary for its own preservation and for the common good — otherwise its governance and preservation would not have been sufficiently provided for — hence it is that a precept can be brought forth binding one to do something on account of the good of the Republic even at the expense of life: for just as every man has the power of exposing a part of his body to loss when that is necessary for the preservation of the whole, so the Republic has the power of exposing individuals, who are its parts and members, when the necessity of the whole, or the common good, requires it. — Hence it is that the Soldier is bound, at the peril of his life, not to desert his station, and also to attack the enemy at the precept of his commander: because the desertion of the station, and the failure to attack, would harm the public good more than the loss of that soldier's life harms it. — Hence likewise Parish priests are bound, even at the risk of life, to reside personally in their parishes, if the Bishop so commands, even in time of pestilence or of some other imminent danger of death; for the loss of the life of that parish priest is not of such moment as the salvation of the people, which can be procured through his personal and actual residence, etc.

The second part of the assertion is also evident; for where no imminent danger of the public good is present, everyone is bound by natural law to preserve his own life; and this holds in practice in the Church: for although it is forbidden under pain of excommunication, and therefore under mortal sin, that anyone communicate with heretical excommunicated infidels; nevertheless it is lawful to have participation with them, as is had in cause 11, question 3, chapter 103, where it is established that it is lawful in many cases necessary for society and for the sustenance of life to communicate with them.

You will say. The Rule of the Carthusian order commands those same Religious not to eat flesh meats even at the risk of life: but abstinence of this kind is not judged to conduce more to the common good than the life of many Monks who are an example of sanctity to very many others: therefore it is false that anyone is bound to observe a human law even at the peril of life only, when from that law a greater good follows than from the private good of a private man.

— To the antecedent Almainus, Vaior, and certain other Parisian Doctors respond that that Rule not only does not bind, but also that if danger is present the Carthusian is bound by the law of nature to eat flesh meats, as if by the counsel of Physicians that eating is judged necessary for preserving life and restoring health; and that they sin against the natural law of preserving their own life if they abstain from them. — Some judge, with Victoria, lecture De Temperantia, n. 8, that a Carthusian placed in extreme necessity of infirmity can indeed licitly abstain from flesh meats; yet he is not bound, but may licitly eat them, if that is judged altogether necessary by the judgment of Physicians for the defense of life. Which assertion I certainly judge more probable: but John Gerson, Chancellor of Paris, seems to weigh it on both sides with many arguments in his Treatise De non esu carnium a Carthusiensibus, which he published against those who judged those Religious undiscerning and inhuman on account of this statute. He says, moreover, for the affirming side: first, that the Carthusians are bound to this by no express vow: but only by the force of a certain ordinance or positive institution, lest anyone presume to attempt this, and that not under pain of mortal sin, but only of the discipline of the Order. Second, that in this constitution the case of extreme necessity and infirmity ought to be excepted. Third, that the Carthusian is not held expressly to be bound to those things even in the case of extreme necessity: with which clause, were it added, one acting otherwise could not be excused from iniquity. Whence he subjoins that, when he had once asked the most celebrated men of that order what they would do if in the desert they had nothing but flesh meats to eat: they answered that without scruple they would eat of them for the sake of preserving life. Hence too it came about that, when a certain one of the Carthusians was making a journey on horseback, and being reduced to extreme hunger and thirst, the provisions failing, had relieved his thirst with the blood of the horse, the matter having been reported to the Brethren, and the extreme necessity in which he had been placed becoming known, he was received free from all discipline of the Order. — He adds, however, for the opposite opinion, that the case of extreme necessity was not excepted: both because it is sufficiently understood even if not expressed, and also because it was to be feared lest, if any case had been distinctly excepted, men would thenceforth have seized the occasion of extending the exception to other cases: and thus, succeeding times intervening, strength would have ceased to be in that statute. Furthermore, it is licit to do many things, whether temporal or spiritual, by which and in which a man shortens his life, or incurs the weakness of infirmity: which he proves first concerning temporal things, both because otherwise man would be held to devote himself to the study of Medicine, or continually to use the counsels and regimens of Physicians: because from the omission of these we fall into various illnesses, from which follows the shortening of life: and also because otherwise everyone would be held to desist from works and acts from which follow weakenings of the body and for the most part an acceleration of death, such as are frequent in almost every state of men. It is proved secondly concerning spiritual things, for it is certain that for the attaining of many spiritual things it is licit to suffer the debilitation of health and the shortening of life. First, for obeying God: whence it is licit even to suffer death in this case. Second, for satisfying for one's own sin, which is evident from satisfactory works. Third, from charity, for satisfying for the sins of others: which is declared from the foundations of very many Monasteries made so that those who live in them may mourn and do penance for the sins of the founders and of others. Fourth, for avoiding grave scandal: for then we are held to undergo death itself: whence the Apostle, 1 Corinth. 8: if meat scandalize my brother, I will not eat flesh forever. Fifth, for acquiring virtues in oneself or in another: whence the labors, vigils, and sweats of holy men accomplish nothing except that they may be in the exercise of virtue, or that they may inflame others to virtue: whence it is licit for a man to preserve chastity even at the peril of life, nor is he bound who wills it to seek a perpetual dispensation from the supreme Pontiff, if there be no other way of preserving life than the conjugal union, by the just counsel of wise Physicians. But if the Carthusians do not keep that statute in order that they may obey God, nevertheless they keep it in order that they may satisfy God for their sins: they keep it from charity toward their neighbor, satisfying God by such abstinence for the sins of that neighbor, even as for their own proper sins: they keep it lest they be a scandal to the Brethren if they used flesh meats: finally they keep it for the exercise of virtue and for the extirpation of their vices, nor in those cases where the question concerns only the shortening of life or infirmity do they think themselves dispensed. — Gerson adds, that custom so changes nature that flesh meats can be poison to certain stomachs: even though by the eating of flesh meats there might be some certain prolongation of future life: since however it would be uncertain whether afterward that life would be worse, nevertheless they would not have to eat of them: even as the more prudent Physicians do not counsel certain potions which, although they seem suitable enough for the present condition of the sick patient, would nevertheless produce a sluggish and torpid nature by use. Whence he subjoins that it is known to him that a certain most learned Carthusian asserted that more of the Brethren would die or fall ill in that religion if they used flesh meats: because vigils, solitude, and quiet, etc., exercises of this kind of devotion impede digestion, and so leave some crudity in the stomach. It can be added, because scarcely or rarely do we conduct ourselves temperately and soberly amid these enticements of the palate. Gerson concludes that whole work, saying that the prudent Director ought to attend not so much to labors, vexations, and the shortening of life, as that the senses not be rendered dull and stupid through excessive assiduity in fasting or weeping, whence it comes about in consequence that the judgment of reason is overturned.