9. Human Law
Natural law and the New Law are immediate participations in the eternal law. Human laws are mediate participations of eternal law. Parts of the divine plan of government reach us and are partially concretized through the human legislator.
84. The Church: Mother and Teacher
The Christian fulfills his vocation in the Church, in communion with all the baptized. From the Church, he receives the word of God containing the teachings of the “law of Christ.” From the Church, he receives the grace of the sacraments that sustains him on the way. From the Church, he learns the example of holiness and recognizes his model in the all-holy Virgin Mary. He discerns in the Church the authentic witness of those who live it, and he discovers in her the spiritual tradition and long history of the saints who have gone before him and whom the liturgy celebrates in the rhythms of the cycle of the saints.1
85. The Laws of the Church
The Church’s teaching authority comes from God’s self-revelation; thus, she teaches the truth. For this reason, the Church cannot “change” her teachings, not even when they are difficult and may be unpopular.
The teaching authority of the Church has competence to make judgments that others, lacking the same competence, should admit. The Church’s teaching authority is grounded in God’s self-revelation rather than in human efforts and attainments. Thus, the obligation to obey the Church’s law is also more serious than the obligation to obey other law.
The obligation to obey the Church’s law binds only her members. Non-Catholics do nothing wrong in not observing this law. But in disregarding the Church’s moral teaching, non-Catholics are, whether they know it or not, violating moral truth. Even so, they may be less guilty than Catholics because, not accepting the Church and her teachings, they know less clearly what the truth is.
86. The Ecclesiastical Legislator
The supreme legislative power over the whole Church is vested in the Roman pontiff. He usually exercises it through the Roman Curia, or with the advice of diverse legislative bodies, either permanent or appointed ad hoc.
The college of bishops with its head, the pope, also has supreme power over the universal Church. It exercises its power in solemn form in an ecumenical council. The bishops act in it as true legislators, not as mere advisers of the pope. Councils, however, have legitimate legislative powers only when properly convoked, celebrated, and confirmed. Thus, the Council decrees are not true laws until they are confirmed by the pope.
Bishops have legislative powers in their dioceses. They can exercise them directly, through provincial councils, or with the advice of diocesan councils.
87. The Object of Human Law
The object or content of human law is what the law prescribes. The legislator can decree whatever is beneficial for the community that is under his care. We can say, using the traditional formula of St. Isidore of Seville, that the content of the law must be honest, just, possible, useful for the community, and adequate to the place and time.
It is a matter of discussion whether human law can prescribe internal acts and heroic acts. It can certainly prescribe external acts that are, by their very nature, united to internal acts, as in the case of an oath. Civil law cannot prescribe internal acts, because they have no direct influence on the common good. On the other hand, the Church can prescribe them. For example, the Church requires parish priests to offer Mass for the people on some days.
Ordinarily, human law cannot prescribe heroic acts, since they are very difficult and therefore impossible for most people. But they can be prescribed when the common good requires it, or when someone has voluntarily committed himself to perform them.
88. The Subject of Human Law
The subjects of the law are those who are bound to obey it. Merely ecclesiastical laws—as opposed to ecclesiastical laws that are also precepts of natural law—apply to all persons who have been baptized or received in the Catholic Church who have attained the use of reason and are at least seven years old (unless a different age is specified in the law). However, the Church often does not intend to bind heretics and schismatics, especially those who are brought up in their sects.
Thus, children below the age of seven are not bound to observe ecclesiastical laws, even if they have sufficient use of reason (unless some specific law expressly says otherwise). For example, they are not bound to attend Mass on Sundays.
Ordinarily, ecclesiastical laws bind only residents and temporary residents of a certain territory. Residents are those with a domicile in that territory, that is, those living there with the intention of staying indefinitely, or having stayed for at least five years, even if they plan to move in the future. Temporary residents are those with a quasi-domicile in the territory, that is, having lived there for at least three months, or planning to do so.
A person who is out of his domicile or quasi-domicile is called traveler (peregrinus) in canon law. A person without fixed abode, that is, without domicile or quasi-domicile, is called transient (vagus).
Transients are bound by all universal laws and by the particular laws of the place where they are present. Travelers, however, are bound only by universal laws that are in force in the place where they are present. Thus, as the new Code of Canon Law establishes, travelers are not bound by the particular laws of their own territory—with very few exceptions. Neither are they bound by the particular laws of the place where they are present, unless these refer to public order or to unmovable property that is located in that territory.
89. Promulgation and Acceptance of the Law
Promulgation is the authentic manifestation of the law by its author. Universal ecclesiastical laws are promulgated by publication in the Acta Apostolicae Sedis (“Records of the Apostolic See”) or AAS, unless, in some particular case, a different way of promulgation is prescribed. Promulgation is not the same as broadcasting, which can be done through other means.
Church laws do not bind until they come into force. This is usually three months after the date of the AAS issue in which they appear (this is the vacatio legis), unless the law itself expressly specifies a different term. They may also apply immediately, because of the nature of their object.
Particular laws are promulgated in the manner that is established by the legislator, and come into force one month after promulgation—unless a different term is expressly prescribed.
The acceptance of the law is not necessary for it to come into force. Thus, neither the acceptance of Church laws by the people, nor that of the laws of the Roman pontiff by the bishops, nor that of Church laws by civil authority are necessary.
90. The Binding Force of Human Law
Just human laws, whether ecclesiastical or civil, bind in conscience. In some cases, the obligation is strict.
Man can be bound in conscience by God and by those who—knowingly or unknowingly—rightly exercise the authority that is given to them by God. Any just human law is an application of natural law, as understood by the reason of the legislator (cf. Rom 13:1; Prv 8:15; Wis 6:4).
The binding force of human law does not arise from the coercive power of the legislator, but from the participation of human law in eternal law through natural law. This participation enables human law to show the way that man must take in order to attain his last end.
Therefore, human laws are just insofar as they are in agreement with eternal law. They certainly do so when they prescribe only what natural law prescribes—although this does not add anything to the binding force of natural law precepts. Human laws also agree with eternal law when they specify the way to fulfill natural law in certain circumstances (for example, the legal requirements for a commercial contract, or for the incorporation of a society).2
For a law to be just, it must fulfill the following conditions:
· It must be really ordained to the common good. As we have just said, a law that opposes natural or divine positive law can never achieve the common good.
· If it concerns distributive justice, it must distribute burdens in an equitable way.
· It should not exceed the authority of the legislator—otherwise it would not be a law.3
Thus, unjust human laws are not properly laws, since they are not an “ordinance of reason for the common good.”4 Therefore, they do not bind in conscience. If an unjust “law” prescribes something against an aspect of the common good protected by divine law, aside from not binding in conscience, there is a positive obligation of not obeying it (cf. Acts 5:29). If it goes against only human common good, there may be an accidental obligation of obeying it when disobedience would cause a greater harm to the common good.
The gravity of the obligation cannot be determined in a general way, since it depends on the matter of the law, its purpose, and the intention of the legislator. It is commonly held that the legislator may set a light obligation for laws concerning serious matters, and, at times, it is fitting to do so. But he cannot command with strict obligation matters that are light in themselves, since this would impose a disproportionate burden on his subjects.
In practice, the seriousness of the obligation can be measured through:
· the wording of the law itself,
· the gravity of the penalties that are established for the transgressors,
· the interpretation of experts and the customs of the community, tacitly accepted by the legislator.
A transgression of the law, no matter how small, is always serious when implying a formal contempt of the law. Formal contempt means that the law is violated not out of aversion to the thing prescribed, but out of aversion to the legitimate authority as such (not to the specific person exercising it). It is precisely this serious rebellion that constitutes a mortal sin.5
91. The Binding Force of Some Special Laws
An invalidating law establishes that an act that is valid in itself is invalid, or at least rescindable, if specific formalities are not fulfilled. This is not the same as a prohibiting law, which makes an act illicit but not necessarily invalid.
Invalidating laws usually apply to contracts. The act may become directly invalid (like a marriage without two witnesses) or rescindable by a court sentence (like a last will that lacks some requirement).
Incapacitating laws are similar to invalidating laws, but they apply to persons rather than things or actions. Thus, a lawyer may be incapacitated for the practice of law.
The effects of invalidating and incapacitating laws are independent from the good faith of the subject. Thus, if a priest or deacon assisting has no jurisdiction, a marriage is null, even though all participants may be convinced of its validity.
Merely penal laws are those that impose no moral obligation, but bind only by means of a penalty. Many authors deny the existence of such laws, since it seems that binding in conscience belongs to the nature of the law. Those admitting their existence reduce the obligation of fulfilling them to the acceptance of the penalty imposed.
92. The Binding Force of Civil Law
Civil authorities have a true power to issue civil laws, which are necessary for the right ordering of civil society. Without laws, society could not fulfill its proper end, which is helping its members achieve their temporal good.
The object of civil law comprises those external human acts that lead to the attainment of society’s temporal good. Just civil laws bind in conscience. Here the term just is really superfluous since, as we have seen, unjust laws are not laws at all.
We may add further clarifications on the obligation of some civil laws:
· Civil laws that regulate the transfer of ownership or establish rights bind in conscience according to commutative justice (which governs relations between physical or juridical persons) and not just legal justice (which governs obedience to authority). Thus, their transgression implies an obligation to make restitution, as we shall see when we study the virtue of justice.
· Invalidating civil laws bind in conscience after a court sentence. Thus, a commercial contract that is rescinded by a judge must also be held as invalid in conscience.
Specific obligations of some civil laws, like tax laws, will be studied in connection with the virtue of justice.
93. The Fulfillment of the Law
The proper way of fulfilling the law can be sufficiently clarified with the following principles:
· The fulfillment of the law does not require that the act be done out of virtue or justice. Thus, a person who goes to Mass on Sunday because otherwise he would have to go to Confession still fulfills the precept.
· The fulfillment of the law does not require the intention to obey the law; it is enough to intend the prescribed action. Thus, a person who goes to Mass unaware that it is a Sunday or holy day of obligation does fulfill the precept. Someone who is going to a Saturday afternoon Mass out of devotion, intending to attend also Sunday Mass, would fulfill the precept even if he fails to attend again on Sunday.
· When a law establishes a period of time to complete an act, the obligation ceases when the term expires. Thus, a person who misses Sunday Mass is not bound to go on Monday. But if the term is established to encourage an act, the obligation remains after its expiration. Thus, someone who fails to fulfill the Easter precept is still bound to receive Communion as soon as possible.
94. Interpretation of the Law
Simple interpretation is the genuine explanation of the law, either through a clarification of the intention of the legislator, or through an exposition of the legal obligation. By itself, it does not add anything to the law; it just explains its contents.
Authentic interpretation is that done by the legislator himself, his successors, or those whom he has empowered to do so. Customary interpretation is that proceeding from legitimately introduced customs. It is similar to jurisprudence or judicial interpretation. Doctrinal interpretation is that done by law experts.
From these definitions, we can easily deduce the following principles:
· Authentic interpretation has the force of the law, and binds as strictly as the law itself.
· Customary and doctrinal interpretations that are applied with the silence of the legislator—who could easily object—are to be admitted and followed.
Epikeia or equity is a benign and equitable interpretation, not of the law itself, but of the intention of the legislator. It is assumed that, in an extraordinary particular case, the legislator would not want to enforce the law if its application would cause a great harm or burden. Thus, when a traffic light is out of order and with the red light on, it would be very burdensome for drivers to comply with the law; it is assumed that the legislator does not want them to remain there for hours or days until the light is repaired.
The use of epikeia requires common sense and love for justice. Some rules must be observed:
· Epikeia can be used whenever a law becomes harmful, burdensome, and difficult to observe.
· Epikeia cannot be applied in the following cases:
o A legitimate dispensation can be easily obtained. Thus, in the previous example, if a policeman is directing traffic, one cannot cross until he gives the signal.
o It is clearly a matter of natural law. Unlike human legislators, God can foresee all particular cases. Thus, one can never use epikeia to tell a lie.
95. Suspension of the Law
Either the law or its binding force can be suspended.
95a) Suspension of the Law’s Binding Force
The binding force of the law ceases, while the law itself remains, in the following cases:
· Ignorance of the subject. This has been discussed in the chapter devoted to human acts.
· Impossibility. We can distinguish between the following:
o Absolute or physical impossibility. When there is no possible way of fulfilling a law, there is no obligation to do it. Thus, a ship’s passenger is not bound to hear Mass on Sundays if there is no Mass in the ship.
o Moral impossibility. Great difficulty excuses a person from the fulfillment of human and divine positive law, but not of natural law. Bad weather can excuse an elderly person from going to Mass, but nothing—not even saving one’s life—excuses from a precept of natural law, such as not blaspheming.
· Dispensation. This is the suspension of the law or of its obligation in a particular case, granted by the competent authority for a special and proportionate reason. Canon law forbids marriage of two first cousins but, in special cases, if there is a sufficient reason, a dispensation may be granted.
· Privilege. It may also suspend the obligation of the law. Privilege is a favorable private law that overrules or extends the common law. Since it has the character of a law, it must be permanent and stable, useful for the community, and established by the authority who is in charge of the community.
95b) Suspension of the Law Itself
The law itself may be suspended in the following cases:
· Abrogation. The same authority who has power to establish the law can abrogate it.
· Cessation of its purpose. When the purpose for which it was created disappears, the law is suspended. Thus, when prayers are prescribed for the fruits of an ecclesiastical congress, the law ceases when the congress is over.
· Custom. This is a certain right introduced by usage that, in the absence of a law, is accepted as law. This “absence of law” may refer to ambiguity in the law, and then custom fills the gap according to the law, by clarifying it. It may also refer to lack of universality or of extension, and then custom acts beyond the law (praeter legem), extending its application. It may also refer to the uselessness of the law, in which case custom makes up for it against the law. For a custom to be legitimate, it must be reasonable and have the consent of the competent authority.
Footnotes:
1. Cf. CCC, 894–896.
2. Cf. ST, I-II, q. 91, a. 3; CCC, 1902.
3. Cf. ST, I-II, q. 96, a. 4.
4. Cf. CCC, 1903.
5. Cf. D.M. Prümmer, Manuale Theologiae Moralis, 1:20.
84. The Church: Mother and Teacher
The Christian fulfills his vocation in the Church, in communion with all the baptized. From the Church, he receives the word of God containing the teachings of the “law of Christ.” From the Church, he receives the grace of the sacraments that sustains him on the way. From the Church, he learns the example of holiness and recognizes his model in the all-holy Virgin Mary. He discerns in the Church the authentic witness of those who live it, and he discovers in her the spiritual tradition and long history of the saints who have gone before him and whom the liturgy celebrates in the rhythms of the cycle of the saints.1
85. The Laws of the Church
The Church’s teaching authority comes from God’s self-revelation; thus, she teaches the truth. For this reason, the Church cannot “change” her teachings, not even when they are difficult and may be unpopular.
The teaching authority of the Church has competence to make judgments that others, lacking the same competence, should admit. The Church’s teaching authority is grounded in God’s self-revelation rather than in human efforts and attainments. Thus, the obligation to obey the Church’s law is also more serious than the obligation to obey other law.
The obligation to obey the Church’s law binds only her members. Non-Catholics do nothing wrong in not observing this law. But in disregarding the Church’s moral teaching, non-Catholics are, whether they know it or not, violating moral truth. Even so, they may be less guilty than Catholics because, not accepting the Church and her teachings, they know less clearly what the truth is.
86. The Ecclesiastical Legislator
The supreme legislative power over the whole Church is vested in the Roman pontiff. He usually exercises it through the Roman Curia, or with the advice of diverse legislative bodies, either permanent or appointed ad hoc.
The college of bishops with its head, the pope, also has supreme power over the universal Church. It exercises its power in solemn form in an ecumenical council. The bishops act in it as true legislators, not as mere advisers of the pope. Councils, however, have legitimate legislative powers only when properly convoked, celebrated, and confirmed. Thus, the Council decrees are not true laws until they are confirmed by the pope.
Bishops have legislative powers in their dioceses. They can exercise them directly, through provincial councils, or with the advice of diocesan councils.
87. The Object of Human Law
The object or content of human law is what the law prescribes. The legislator can decree whatever is beneficial for the community that is under his care. We can say, using the traditional formula of St. Isidore of Seville, that the content of the law must be honest, just, possible, useful for the community, and adequate to the place and time.
It is a matter of discussion whether human law can prescribe internal acts and heroic acts. It can certainly prescribe external acts that are, by their very nature, united to internal acts, as in the case of an oath. Civil law cannot prescribe internal acts, because they have no direct influence on the common good. On the other hand, the Church can prescribe them. For example, the Church requires parish priests to offer Mass for the people on some days.
Ordinarily, human law cannot prescribe heroic acts, since they are very difficult and therefore impossible for most people. But they can be prescribed when the common good requires it, or when someone has voluntarily committed himself to perform them.
88. The Subject of Human Law
The subjects of the law are those who are bound to obey it. Merely ecclesiastical laws—as opposed to ecclesiastical laws that are also precepts of natural law—apply to all persons who have been baptized or received in the Catholic Church who have attained the use of reason and are at least seven years old (unless a different age is specified in the law). However, the Church often does not intend to bind heretics and schismatics, especially those who are brought up in their sects.
Thus, children below the age of seven are not bound to observe ecclesiastical laws, even if they have sufficient use of reason (unless some specific law expressly says otherwise). For example, they are not bound to attend Mass on Sundays.
Ordinarily, ecclesiastical laws bind only residents and temporary residents of a certain territory. Residents are those with a domicile in that territory, that is, those living there with the intention of staying indefinitely, or having stayed for at least five years, even if they plan to move in the future. Temporary residents are those with a quasi-domicile in the territory, that is, having lived there for at least three months, or planning to do so.
A person who is out of his domicile or quasi-domicile is called traveler (peregrinus) in canon law. A person without fixed abode, that is, without domicile or quasi-domicile, is called transient (vagus).
Transients are bound by all universal laws and by the particular laws of the place where they are present. Travelers, however, are bound only by universal laws that are in force in the place where they are present. Thus, as the new Code of Canon Law establishes, travelers are not bound by the particular laws of their own territory—with very few exceptions. Neither are they bound by the particular laws of the place where they are present, unless these refer to public order or to unmovable property that is located in that territory.
89. Promulgation and Acceptance of the Law
Promulgation is the authentic manifestation of the law by its author. Universal ecclesiastical laws are promulgated by publication in the Acta Apostolicae Sedis (“Records of the Apostolic See”) or AAS, unless, in some particular case, a different way of promulgation is prescribed. Promulgation is not the same as broadcasting, which can be done through other means.
Church laws do not bind until they come into force. This is usually three months after the date of the AAS issue in which they appear (this is the vacatio legis), unless the law itself expressly specifies a different term. They may also apply immediately, because of the nature of their object.
Particular laws are promulgated in the manner that is established by the legislator, and come into force one month after promulgation—unless a different term is expressly prescribed.
The acceptance of the law is not necessary for it to come into force. Thus, neither the acceptance of Church laws by the people, nor that of the laws of the Roman pontiff by the bishops, nor that of Church laws by civil authority are necessary.
90. The Binding Force of Human Law
Just human laws, whether ecclesiastical or civil, bind in conscience. In some cases, the obligation is strict.
Man can be bound in conscience by God and by those who—knowingly or unknowingly—rightly exercise the authority that is given to them by God. Any just human law is an application of natural law, as understood by the reason of the legislator (cf. Rom 13:1; Prv 8:15; Wis 6:4).
The binding force of human law does not arise from the coercive power of the legislator, but from the participation of human law in eternal law through natural law. This participation enables human law to show the way that man must take in order to attain his last end.
Therefore, human laws are just insofar as they are in agreement with eternal law. They certainly do so when they prescribe only what natural law prescribes—although this does not add anything to the binding force of natural law precepts. Human laws also agree with eternal law when they specify the way to fulfill natural law in certain circumstances (for example, the legal requirements for a commercial contract, or for the incorporation of a society).2
For a law to be just, it must fulfill the following conditions:
· It must be really ordained to the common good. As we have just said, a law that opposes natural or divine positive law can never achieve the common good.
· If it concerns distributive justice, it must distribute burdens in an equitable way.
· It should not exceed the authority of the legislator—otherwise it would not be a law.3
Thus, unjust human laws are not properly laws, since they are not an “ordinance of reason for the common good.”4 Therefore, they do not bind in conscience. If an unjust “law” prescribes something against an aspect of the common good protected by divine law, aside from not binding in conscience, there is a positive obligation of not obeying it (cf. Acts 5:29). If it goes against only human common good, there may be an accidental obligation of obeying it when disobedience would cause a greater harm to the common good.
The gravity of the obligation cannot be determined in a general way, since it depends on the matter of the law, its purpose, and the intention of the legislator. It is commonly held that the legislator may set a light obligation for laws concerning serious matters, and, at times, it is fitting to do so. But he cannot command with strict obligation matters that are light in themselves, since this would impose a disproportionate burden on his subjects.
In practice, the seriousness of the obligation can be measured through:
· the wording of the law itself,
· the gravity of the penalties that are established for the transgressors,
· the interpretation of experts and the customs of the community, tacitly accepted by the legislator.
A transgression of the law, no matter how small, is always serious when implying a formal contempt of the law. Formal contempt means that the law is violated not out of aversion to the thing prescribed, but out of aversion to the legitimate authority as such (not to the specific person exercising it). It is precisely this serious rebellion that constitutes a mortal sin.5
91. The Binding Force of Some Special Laws
An invalidating law establishes that an act that is valid in itself is invalid, or at least rescindable, if specific formalities are not fulfilled. This is not the same as a prohibiting law, which makes an act illicit but not necessarily invalid.
Invalidating laws usually apply to contracts. The act may become directly invalid (like a marriage without two witnesses) or rescindable by a court sentence (like a last will that lacks some requirement).
Incapacitating laws are similar to invalidating laws, but they apply to persons rather than things or actions. Thus, a lawyer may be incapacitated for the practice of law.
The effects of invalidating and incapacitating laws are independent from the good faith of the subject. Thus, if a priest or deacon assisting has no jurisdiction, a marriage is null, even though all participants may be convinced of its validity.
Merely penal laws are those that impose no moral obligation, but bind only by means of a penalty. Many authors deny the existence of such laws, since it seems that binding in conscience belongs to the nature of the law. Those admitting their existence reduce the obligation of fulfilling them to the acceptance of the penalty imposed.
92. The Binding Force of Civil Law
Civil authorities have a true power to issue civil laws, which are necessary for the right ordering of civil society. Without laws, society could not fulfill its proper end, which is helping its members achieve their temporal good.
The object of civil law comprises those external human acts that lead to the attainment of society’s temporal good. Just civil laws bind in conscience. Here the term just is really superfluous since, as we have seen, unjust laws are not laws at all.
We may add further clarifications on the obligation of some civil laws:
· Civil laws that regulate the transfer of ownership or establish rights bind in conscience according to commutative justice (which governs relations between physical or juridical persons) and not just legal justice (which governs obedience to authority). Thus, their transgression implies an obligation to make restitution, as we shall see when we study the virtue of justice.
· Invalidating civil laws bind in conscience after a court sentence. Thus, a commercial contract that is rescinded by a judge must also be held as invalid in conscience.
Specific obligations of some civil laws, like tax laws, will be studied in connection with the virtue of justice.
93. The Fulfillment of the Law
The proper way of fulfilling the law can be sufficiently clarified with the following principles:
· The fulfillment of the law does not require that the act be done out of virtue or justice. Thus, a person who goes to Mass on Sunday because otherwise he would have to go to Confession still fulfills the precept.
· The fulfillment of the law does not require the intention to obey the law; it is enough to intend the prescribed action. Thus, a person who goes to Mass unaware that it is a Sunday or holy day of obligation does fulfill the precept. Someone who is going to a Saturday afternoon Mass out of devotion, intending to attend also Sunday Mass, would fulfill the precept even if he fails to attend again on Sunday.
· When a law establishes a period of time to complete an act, the obligation ceases when the term expires. Thus, a person who misses Sunday Mass is not bound to go on Monday. But if the term is established to encourage an act, the obligation remains after its expiration. Thus, someone who fails to fulfill the Easter precept is still bound to receive Communion as soon as possible.
94. Interpretation of the Law
Simple interpretation is the genuine explanation of the law, either through a clarification of the intention of the legislator, or through an exposition of the legal obligation. By itself, it does not add anything to the law; it just explains its contents.
Authentic interpretation is that done by the legislator himself, his successors, or those whom he has empowered to do so. Customary interpretation is that proceeding from legitimately introduced customs. It is similar to jurisprudence or judicial interpretation. Doctrinal interpretation is that done by law experts.
From these definitions, we can easily deduce the following principles:
· Authentic interpretation has the force of the law, and binds as strictly as the law itself.
· Customary and doctrinal interpretations that are applied with the silence of the legislator—who could easily object—are to be admitted and followed.
Epikeia or equity is a benign and equitable interpretation, not of the law itself, but of the intention of the legislator. It is assumed that, in an extraordinary particular case, the legislator would not want to enforce the law if its application would cause a great harm or burden. Thus, when a traffic light is out of order and with the red light on, it would be very burdensome for drivers to comply with the law; it is assumed that the legislator does not want them to remain there for hours or days until the light is repaired.
The use of epikeia requires common sense and love for justice. Some rules must be observed:
· Epikeia can be used whenever a law becomes harmful, burdensome, and difficult to observe.
· Epikeia cannot be applied in the following cases:
o A legitimate dispensation can be easily obtained. Thus, in the previous example, if a policeman is directing traffic, one cannot cross until he gives the signal.
o It is clearly a matter of natural law. Unlike human legislators, God can foresee all particular cases. Thus, one can never use epikeia to tell a lie.
95. Suspension of the Law
Either the law or its binding force can be suspended.
95a) Suspension of the Law’s Binding Force
The binding force of the law ceases, while the law itself remains, in the following cases:
· Ignorance of the subject. This has been discussed in the chapter devoted to human acts.
· Impossibility. We can distinguish between the following:
o Absolute or physical impossibility. When there is no possible way of fulfilling a law, there is no obligation to do it. Thus, a ship’s passenger is not bound to hear Mass on Sundays if there is no Mass in the ship.
o Moral impossibility. Great difficulty excuses a person from the fulfillment of human and divine positive law, but not of natural law. Bad weather can excuse an elderly person from going to Mass, but nothing—not even saving one’s life—excuses from a precept of natural law, such as not blaspheming.
· Dispensation. This is the suspension of the law or of its obligation in a particular case, granted by the competent authority for a special and proportionate reason. Canon law forbids marriage of two first cousins but, in special cases, if there is a sufficient reason, a dispensation may be granted.
· Privilege. It may also suspend the obligation of the law. Privilege is a favorable private law that overrules or extends the common law. Since it has the character of a law, it must be permanent and stable, useful for the community, and established by the authority who is in charge of the community.
95b) Suspension of the Law Itself
The law itself may be suspended in the following cases:
· Abrogation. The same authority who has power to establish the law can abrogate it.
· Cessation of its purpose. When the purpose for which it was created disappears, the law is suspended. Thus, when prayers are prescribed for the fruits of an ecclesiastical congress, the law ceases when the congress is over.
· Custom. This is a certain right introduced by usage that, in the absence of a law, is accepted as law. This “absence of law” may refer to ambiguity in the law, and then custom fills the gap according to the law, by clarifying it. It may also refer to lack of universality or of extension, and then custom acts beyond the law (praeter legem), extending its application. It may also refer to the uselessness of the law, in which case custom makes up for it against the law. For a custom to be legitimate, it must be reasonable and have the consent of the competent authority.
Footnotes:
1. Cf. CCC, 894–896.
2. Cf. ST, I-II, q. 91, a. 3; CCC, 1902.
3. Cf. ST, I-II, q. 96, a. 4.
4. Cf. CCC, 1903.
5. Cf. D.M. Prümmer, Manuale Theologiae Moralis, 1:20.