364. Counsels.--In addition to its precepts (which are obligatory), the New Law contains counsels, which are optional, but which are expressly recommended.
365. A counsel is a moral direction by which one who is willing is advised to prefer a higher to a lower good, in order thereby to tend more efficaciously towards perfection and to merit a greater reward.
(a) A counsel is not something commanded. Example: Our Lord"s direction to the disciples on their first mission that they should not carry their sustenance with them was required as a duty that they might learn to trust in Providence. Hence, it was not a counsel.
(b) A counsel is not everything good that is not commanded. Example: Marriage is not commanded to all, but it is not a counsel, since the opposite good, viz., celibacy, is better (I Cor., vii. 38).
366. That which is only counselled as to its actual performance, is commanded as to its acceptance by the will for a case of necessity.
Example: Our Lord"s direction that good be done to personal enemies does not command that one actually confer favors on them outside of the case of necessity (this is only counselled), but only that one be so charitably inclined that one is ready to help even a personal enemy who is in serious need.
367. The superiority of the counsels may be seen from the att.i.tudes men take to the goods of this world.
(a) Some are taken up entirely with the things of earth, making temporal goods the end of life and the standard of action. These do not keep the Commandments and cannot be saved.
(b) Some use the goods of this world not as ends, but as subordinate to things that are higher. These keep the Commandments and will be saved; but their solicitude about temporal concerns lessens the attention they could give to things of the spirit.
(c) Some renounce entirely the goods of this life, in order to give themselves as completely as possible to the things of G.o.d. These observe the counsels, and can more readily attain to holiness and salvation; for, being freed from numerous cares about earthly things, they can devote themselves more easily and earnestly to things that are heavenly.
368. The Three Counsels.--There are many counsels given in the Gospels, but all can be reduced to three, according to the three chief earthly goods that may be surrendered, and the three kinds of temptation that come from those goods.
(a) The counsel of poverty requires that one give up entirely external goods or wealth, from which comes the concupiscence of the eyes: "If thou wilt be perfect, go sell what thou hast, and give to the poor, and thou shalt have treasure in heaven" (Matt, Xix. 21).
(b) The counsel of chast.i.ty requires that one renounce entirely carnal goods of pleasure, from which arise the concupiscence of the flesh: "He that giveth his virgin in marriage, doth well; and he that giveth her not, doth better" (I Cor., vii. 38).
(c) The counsel of obedience requires that one deny oneself the good of the soul which is one"s own will, from which comes the pride of life: "Come follow Me" (Matt, xix. 21).
369. The counsels can be followed in two ways. (a) They are followed completely, when one accepts them as a rule for one"s whole life, as is done by those who embrace the state of perfection in the religious life, taking by vow the three evangelical counsels of poverty, chast.i.ty and obedience. (b) They are followed partially when one practises them in particular instances. Examples: A wealthy man who gives to the poor when there is no obligation to do so, practises the counsel of poverty in that case. A person who renounces his own legitimate wishes in some matter, practises the counsel of obedience in that case, as when he confers some favor on one who has offended him, or pardons a debt.
Married persons who practise conjugal abstinence for the sake of religion, follow a counsel of chast.i.ty (I Cor., vii. 5).
Art. 4: HUMAN LAW
(_Summa Theologica_, I-II, qq. 95-97.)
370. Definition.--Since human perversity often needs a check in regulations that are not expressly contained in the Natural or in the Divine Law, other laws must be made by society, drawn from those higher laws as conclusions or added to them as determinations, in order to meet special circ.u.mstances and necessities.
371. Division of Human Laws.-Human laws are variously divided.
(a) According to the difference of legislators, laws are either ecclesiastical or civil.
b) According to their mode of derivation from the Natural Law, laws belong either to the law of nations (_jus gentium_) or to civil law. To the _jus gentium_ belong those laws which are derived from the Natural Law as conclusions from premises, e.g., the right to private property without which men cannot live peacefully in society. To civil law belongs whatever is derived from Natural Law by way of positive determination by a legislator; e.g., Natural Law dictates that the evil-doer be punished; but that the punishment take a particular form, imprisonment, exile, death, is a determination depending upon the will of the legislator.
The _jus gentium_ is not international law which derives its force and sanction from the free will of the legislator. The law of nations is common to all men and derives its force from the conviction of men that such a law is demanded for the good of mankind. It is not a secondary precept of the Natural Law which is derived from the primary precepts necessarily. Rather it is based upon a contingent set of circ.u.mstances; it does not spring from man"s nature absolutely considered, but from the way in which man acts and reacts in his society.
(c) According to the difference of their objects, laws are either affirmative (i.e., preceptive) or negative (i.e., prohibitive). An affirmative law obliges always, but not for every occasion; a negative law obliges always, and for every occasion. Example: The Third and Fourth Commandments are always in force, but it is not necessary to elicit a positive act of compliance at every instant. The other Commandments, which are negative, are not only in force always, but it is necessary at every instant to omit what they forbid.
(d) According to the obligation which they impose, laws are either moral, penal, or moral-penal. Moral laws oblige under pain of sin, penal laws under pain of punishment, moral-penal laws under pain of both.
(e) According to their inclusiveness, laws are either personal or territorial. The former affect the person for whom the law is made, and oblige him even when he is outside the territory of the lawgiver. The latter affect the territory, and hence do not oblige a subject when he is outside the territory affected by the law.
(f) According to their effect, prohibitive laws are either merely prohibitive or irritant. The former make what is forbidden illegal, the latter make it also void.
372. Qualities.--The objects or content of human law must be of such a character: (a) that they do not conflict with the Natural or the Divine Law; (b) that they be beneficial to the community for which they are made.
373. Laws fail to be of public benefit in such cases as the following: (a) if they are made without a broad view of the public good, which has regard for different cla.s.ses of people and various interests, and which provides for the future as well as for the present; (b) if, losing sight of the fact that the majority are not perfect in virtue, the lawgivers require so much that the law falls into contempt, and graver evils result than would have happened otherwise. Hence, it is advisable that human laws confine their prohibitions to graver misdeeds, especially those that are harmful to others and to society, and restrict their commands to such good acts as promote the common weal.
Multiplicity of laws, excessive penalties for minor offenses, cruel and unusual sanctions, lead to lawlessness.
374. Human laws should not prescribe what is too difficult.
(a) They should not prescribe heroic virtue, unless the common safety demands it, or a subject has voluntarily obliged himself to it.
Example: Soldiers in war and pastors in time of pestilence must expose themselves to danger of death; but for ordinary occasions the law should not oblige one to risk one"s life or other great good.
(b) They should not prescribe agreement with the mind of the legislator or a virtuous performance of what is prescribed, unless the thing ordered itself demands this. Examples: The law of annual Confession and of the Easter Communion requires, not only that these Sacraments be received, but that they be received worthily, for an unworthy Confession is no Sacrament, and an unworthy Communion does not satisfy the command of Christ, of which the Church command is but a determination. On the other hand, the Lenten fast observed by one who is not in the state of grace is an act good in itself and satisfies the law. He who hears Ma.s.s on a holyday, not knowing that it is a holyday, satisfies the obligation, though he had no intention of fulfilling it.
375. Obligation of Human Laws.--All human laws that are just, whether they be ecclesiastical or civil, made by believers in G.o.d or unbelievers, are obligatory in conscience, (a) From the beginning the Church has made laws and imposed them as obligatory (Acts, xv. 29; I Cor., vi. 4; I Cor., xi. 5; I Tim., v. 9-12), and has recognized as obligatory the laws of the State, without regard to the moral or religious qualifications of the rulers (I Peter, ii. 13-16; Rom., xiii.
1-7).
(b) Human laws are necessary. The Natural Law does not prescribe definite penalties, while the Positive Divine Law prescribes only such as are remote and invisible; and hence, if there were no human laws holding out the threat of determined and present punishments, the Divine laws would be contemned. Moreover, since the higher laws are sometimes unknown, or prescribe no time, place or manner of accomplishment, or do not command things that would be useful for their observance, it is necessary that there be laws made by man to secure the better knowledge and fulfillment of the laws given by G.o.d Himself.
376. A human law is unjust in two ways:
(a) if opposed to the rights of G.o.d. Examples: The command of Pharaoh that the Hebrew male children be murdered (Exod., i. 17), the command of Antiochus that his subjects sacrifice to idols (I Mach., ii. 16-20), the command of the Sanhedrin that the Apostles should cease to preach (Acts, v. 29);
(b) if opposed to the rights of man. This happens in three ways: First, when the purpose of the law is not the common good, as when the lawgiver seeks only his own profit or glory; secondly, when the maker of the law has not the requisite authority; thirdly, when the law itself, although for the common good and made by competent authority, does not distribute burdens equally or reasonably among the people.
Examples: Achab and Jezabel, in the affair of the vineyard of Naboth, had in view not the public, but their own private benefit (III Kings, xvi). The sentence of death p.r.o.nounced on our Lord by the Sanhedrin was illegal, because, among other reasons, the body was not a.s.sembled according to law, and hence had no authority to give sentence. The commands given the Israelites by Pharaoh (Exod., v. 18), and to their subjects by Oriental despots (I Kings, viii), were unjust, because the former discriminated against the Israelites, and the latter bore down too heavily on all the people. The former civil laws that prescribed the same penalty of hanging for a slight misdemeanor (such as the theft of a loaf of bread by a boy) as for the capital crimes of piracy or murder, the Stamp Act of George III, and some modern laws that sentence to life imprisonment those who have been four times convicted of slight offenses, are more recent examples of unjust laws.
377. Obedience to unjust laws is not obligatory in the following cases.
(a) If a law is opposed to the rights of G.o.d, it is not lawful to do what that law commands or permits, nor to omit what it forbids.
Examples: If a law permits one to practise polygamy, or commands one to blaspheme religion, one may not use the permission or obey. If a law forbids one to give or receive Baptism, it has no force. (b) If a law is certainly opposed to the rights of man in any of the three ways mentioned in the previous paragraph (376, b), it does not of itself oblige in conscience, since it lacks some essential condition of a true law, and even the consent of the majority or of all does not make it just. However, it may oblige accidentally, on account of the greater evils that would follow on disobedience, such as scandal, civil disturbances, etc. The duty of subjects is to remonstrate against such a law and to work for its repeal.
378. The obligation of all laws is not the same in kind, or degree. (a) Moral laws oblige one to do what is commanded or to omit what is forbidden, as a duty owed in conscience; hence, he who violates a law of this kind is guilty of moral fault. Penal laws oblige one to follow what they prescribe, if one would be free from guilt before the law and not liable in conscience to the penalty prescribed; hence, he who violates a penal law is guilty of juridical fault, and, if he further illegally resists the penalty, he becomes guilty also of moral fault.
(b) Moral laws are not all of the same obligatory force, some of them obliging under grave sin, others under venial sin.
379. The following human laws are recognized as moral laws: (a) ecclesiastical laws, with few exceptions; (b) civil laws that confirm the Eternal or Divine Law, or that pertain directly to the common welfare, such as the laws that determine the duties of public officials, the rights of inheritance, etc.
380. The following human laws are generally regarded as merely penal: (a) ecclesiastical laws which expressly state that their observance is not required under pain of sin (e.g., the statutes of many Religious Orders); (b) civil laws of minor importance, or which the legislator imposes as a purely civil duty (e.g., some traffic regulations).
381. Moral laws oblige under grave sin if the two following conditions are present: (a) if the thing prescribed by the law is of great importance, because of its nature or circ.u.mstances; (b) if the lawgiver intended to impose a grave obligation.
382. A matter of light moment cannot be made the object of a law that binds under grave sin, for this would impose an intolerable burden, and would thus be contrary to the common good. What is unimportant in itself, however, may become important on account of its purpose or other circ.u.mstance.
383. The intention of the legislator to impose a grave moral obligation is recognized either: (a) from his own declaration, as when a church law is commanded under threat of the divine judgment; or (b) from circ.u.mstances that indicate such an intention, such as the gravity of the subject-matter of the law or the kind of penalty it prescribes, the general opinion of authorities, or the common practice of the community.
384. By obliging to the observance of what they command and the avoidance of what they forbid, laws indirectly oblige to what is necessary for such obedience. (a) Hence, the law obliges one to make use of the ordinary means for its fulfillment. Examples: He who has not used ordinary diligence to know the law, sins against the law if he violates its prescriptions. He who eats meat on a day of abstinence, because he neglected to provide himself with other food, is guilty of sin. (b) The law obliges one to use sufficient diligence in removing impediments to its fulfillment or dangers of its violation. Examples: The law of hearing Ma.s.s on Sunday obliges one not to stay up so late on Sat.u.r.day that fulfillment will be impossible. The law of fasting obliges one to avoid dangerous occasions of its violation.
385. Interpretation.--Though laws are carefully framed as to language, doubts about their meaning will often arise--in ordinary cases, because of lack of understanding or changes of conditions, and in extraordinary cases, because from the circ.u.mstances the law seems inapplicable. Hence the need of explaining the law, which is done in ordinary cases by interpretation, in extraordinary cases by _epieikeia_ (see 411 sqq.).
386. Interpretation is a genuine explanation of the law, that is, one that states the meaning of the words of the law according to the intention the lawgiver had in mind when he chose them. It is of various kinds.