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THE
BINDING FORCE
OF
CIVIL LAWS
MATTHEW HERRON, T.O.R

•1

ST. ANTHONY GUILD PRESS
PATERSON, NEW JERSEY

•V' I

CONTENTS
Introduction ...............................................................

Copyright, 1952, by
Matthew Herron, T. O. R.

Imprimi potest:
John P. j. Sullivan, T. O. R.,
Minister Provincial.

Nihil obstat:

W. Thomas Larkin,

Censor Deputatis.
Imprimatur:

t Joseph P. Hurley, D.D.,

Archbishop-Bishop of St. Augustine.
September 15, 1951

The New Testament and the Book of Proverbs have been
quoted from the Confraternity of Christian Doctrine Revision.
1958
PRINTED IN THE UNITED STATES OF AMERICA

Chapter I — Law in General.............................
I. The Definition of Law
.........................
II. An Explanation of the Definition .... /.........................
III. The Acceptance of a Law........... ·.......... .........................
The General Division of Laws................
................
V. The Effects of a Law
VI. The Sanctions of Law ............................. .........................
VII. The Material of Law ................................ .........................
VIII. The Qualities of Positive Law.................... ...........................
Chapter II — Civil Society and Its Authority
I. Society in General .......................................
II. The Divisions of Society...............................
..................
III. The Necessity of Society...................................... .................
The Necessity of Domestic Society.......................
The Necessity of Civil Society.........................
VI. The Origin of Civil Authority................................
VII. Its Mode of Origin..................................................
VIII. God Confers the Authority......................................
IX. Proofs from Scripture ....................................................
X. An Essential Element ........................................................

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3
3
4
8
8
10
12
14
21
21
22
22

24
25
26
27
28
30

Chapter III — The Penal Law Theory..........................................
I. The Divisions of Civil Law.................................................
II. The Definition of a Penal Law............................................
III. The History of the Purely Penal Law Theory..................

32
32
32
33

Chapter IV — Penal Law among Modern Authors...............
I. The Different Theories ..........................................................
II. Critical Analysis of Modern Theories...............................

41
41

Chapter V — An Analysis of the Intrinsic Arguments upon
Which the Penal Law Theory Is Based..................
I. Custom and the Penal Law Theory....................................
II. The Common Estimation and Penal Laws ......................
III. The Greater and the Lesser Argument...............................
The Merely Juridical Fault....................................................
The Will of the Legislator....................................................

51
51
54
56

VI.
VII.
VIII.
IX.

Modern Legislators and the Merely Penal Law Theory’ ..
The Sufficiency of the Penalty.............................................
A Variation .............................................................................
The Rules and Constitutions of Religious Orders............

Page
57
58
60
61

Chapter VI —An Analysis of the Other Examples Which
Authors Give of Purely Penal Laws.........................
I. Traffic Laws concerning Vehicles........................................
II. The Tax Laws........................................................................
III. Hunting and Fishing Laws...................................................
IV. Another Favorite....................................................................
V. An Odd Example.................................................................
VI. Which and How Many Laws Are Penal?.........................

65
65
66
68
69
70
71

Chapter VII — The Merely Penal Law Theory Is Not Nec­
essary ................................................................

73

Chapter VIII — A Dangerous Theory..........................................

79

Chapter IX — Merely Penal Laws

Saint Paul...............

83

Chapter X — Saint Thomas and Penal Laws...........................

89

and

Chapter XI —The Opinions of Theologians Who Have Op­
posed the Merely Penal Law Theory
I. Sylvester Prierias..........
II. Bartolomaeus Medina
III. Bartolomaeus Fumus ...
IV. Dominicus Soto ............
V. Joannes Azorius..........
VI. Gregorius Sayrus ........
VII. Saint Robert Bellarmine
VIII. Joannes Wiggers ..........................
IX. Hieronymus de Medicis a Camerino
X. Martinus Becanus ........................
XI. Francisais Sylvius ........................
XII. Danielus Concina ........................
XIII. Vincentius Ludovicus Gotti..........

99
99
100
101
101
102
102
103
103
104
105
106
107
107

Conclusion .........................................................................

109

Bibliography

113

VI

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INTRODUCTION

In proposing the thesis that all civil laws which participate of
the true nature of law according to the definition of Saint
Thomas, bind in conscience, no attempt has been made to con­
demn the merely penal law theory as completely erroneous.1 Such
an attitude would be foolhardy. Evidence will be exhibited, how­
ever, which seems to demonstrate that those theologians who teach
that all just laws bind in conscience defend the stronger position
on this question. Their arguments seem to be more in harmony
with the mind of Saint Thomas and also of Saint Paul than those
of the opposition.
It must be conceded that the merely penal law theory is the
more popular theory, but it does not necessarily follow that it is
the more probable opinion. One must also admit that it is the
more convenient theory for the individual citizen, but the conse­
quences can be very harmful for the commonwealth. One does
not have to cling to the penal law theory in order to avoid over­
burdening the conscience of the faithful; the general norms which
moral theology provides for the guidance of men are sufficient.
After all, even though one admits that all true civil laws bind
in conscience, it does not follow that all of them bind sub gravi.
They bind in direct proportion to the gravity of the matter, and
the conditions necessary for the commission of a formal sin
must always be present before one is guilty ad culpam. Then too,
many civil statutes are not really laws. Some of them are unjust;
others have such an insignificant relation to the common good
that they lack the reason of a law.
Three factors lead one to question the merely penal law
theory and to examine its foundations. Some authors have changed1
1. "Ex opinionum si quidem praejudiciis quas quis in schola accepit, non licet
viros graves alterius scholae qui contrarium docent, temere ac leviter condem­
nare.” Zubizaretta, Theologia Dogmatica Scholastica (3rd edition, Bilbao,
1938) Vol. I, no. 705.
VII

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their opinion to such an extent that one is amazed. Then, the
different systems that various authors have used to defend the
merely penal law theory do not support each other; rather, they
cast a doubt upon the validity of the whole theory. Furthermore,
the note of caution found in the admonitions of prudent authors
causes one to question the value of the merely penal law theory.
Although they are unwilling to abandon the theory, they ac­
knowledge that if it were widely diffused among the laity its effect
would be to injure civil society.
Certainly an impressive number of well-known authors ad­
vocate the merely penal law theory. Not all of them, however,
are recognized authors, nor do their opinions carry equal weight
among theologians. Continuators of another author’s work and
advocates of another writer’s opinion are not as a rule considered
independent authorities. In many cases they simply adopt an
opinion of their predecessors without giving it any special study.
ttlll
Compilers of textbooks often simply jot down the common
and
convenient opinion without closely examining its foundation.
Then, many authors adopt the opinion of the school of thought
to which they belong without looking any further into the ques­
tion. Mere numbers, therefore, do not necessarily add strength
to an opinion?
No apology is needed for differing from the opinion of
learned and grave theologians. Their authority is no greater than
the intrinsic value of the reasons they present for their opinion.
It must be presumed that outstanding moralists have solid reasons
for the opinions they express, but that presumption always yields
to fact where the contrary is proved? One is always permitted to

examine and weigh the opinions of even the best of authors.
Their opinions have no more probability than the intrinsic reasons
which support them.
A candidate for a degree is not capable by himself of passing
judgment on the value of the intrinsic arguments which great
theologians employ to defend their view. Only men of equal
ability are really in a position to dispute with them. For that
reason very little originality will be found in this thesis, its
whole value depending upon the manner in which Sylvester,
Sylvius, Concina, Medina and Bellarmine interpreted the text of
the Summa Theologica, which touches on questions related to this
thesis. Then, too, the objections which Lopez234 proposed against
the merely penal law theory lend strong support to our position.

2. "Possunt enim decem vel plures auctores tenere aliquam opinionem quorum
auctoritas vix quidquam magis confert ad eius probabilitatem quam auctoritas unius
quem forte illi sine rei examine ad discussiones secuti sunt.”—Cf. Aertnys Thr’
ologia Moralis (Turin. 1893), Vol. I, no. 71.
3. Cf. Merkelbach, Summa Theologiae Moralis (Pans 1938). Vol. Π De
Virtutibus Moralibus, no. 101. Cf. Aertnys-Damen, Theologia Moralis
(Turin, 1947), Vol. I. nos. 93, 94.
VIII

4. Lopez, •'Theoria Legis mere Poenalis," Periodica de Rj Morali Canonica
Liturgica, Vol. XXVII (June, 1938), ρρ· 203-214; Vol. XXIX (Feb., 1940).

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THE

BINDING FORCE
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CIVIL LAWS

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Chapter I
LAW IN GENERAL

I. THE DEFINITION OF LAW

AW in its widest sense is a rule or measure applied to any
I act, whether physical or moral. In this sense we
physical laws, such as the law of gravity. Law also can be con­
sidered as an inclination or an instinct to do something or to act
in a certain fashion. It is in this sense that Saint Paul
when he calls concupiscence "the law in my members.”1 In a
more strict sense, law is an ordinance of reason for human acts,
but it can be considered as a rule for human acts apart from their
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moral aspect — for example, the laws of literary composition.
Then, too, law is also a rule of moral acts, even though it may
bind only one person. This is clearly evident in the obligations
which an individual may derive from a false conscience. In the
strictest sense, law is an ordinance of right reason proceeding from
lawful authority for the common good.
Suarez and D’Annibale give definitions of law that really
describe it rather than define it. According to Suarez: "Law is a
general precept, just and stable, promulgated in a sufficient man­
ner.’’12 According to D’Annibale: "Law is a permanent, general
command properly promulgated by a lawful superior for the
welfare of his subjects.”3
Some of the definitions which Saint Thomas provides seem
to be no more than descriptive; for instance, he calls law "a
rule and a measure according to which one is either persuaded
to act or is restrained from acting”;4 "a dictate of practical reason

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1.
2.
3.
4.

Rom. 7:23.
Tractatus de Legibus, I, i, c. 12.
Summula Theologiae Moralis (Rome, 1908), Pars I, no. 160.
Summa Theologica, la Ilae, q. 90, a. 1.

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emanating from a ruler who governs a perfect community”;5 ”a
dictate of reason in the ruler by whom subjects are governed.”6
The Angelic Doctor, however, is also the author of the classical
definition of law’. ”Law is an ordinance of reason for the com­
mon good, promulgated by one who has charge of the commu­
nity.”7 Most theologians accept and use this definition.
II. AN EXPLANATION OF THE DEFINITION
A. An Ordinance of Reason. Saint Thomas rightly calls law
an ordinance of reason, for the purpose of law is to ordain or
direct some actions, by apt means, to a determined end. To direct
things, however, to a definite end pertains to reason, which judges
both the nature of the end and the means to attain it. Law is,
moreover, a command of practical reason; that is, an effective
direction thought out by reason and imposed by the will to a
determined end. Michael Cronin gives a very thorough explana­
tion in which he shows that a law is primarily a function of
practical reason:
Though law proceeds from reason, it bears also some reference to
the will. For law being a plan, a directing and moving force, it arranges
a line of action and it binds to that line. It is a thought and a command.
For instance, a human law is something more than a mere plan of
securing the common good. It is a plan which the legislator lays on our
wills for acceptance, a plan binding us to follow. Hence law is not of
the intellect alone but of the will also. Intellect is the planning, the
thinking, the arranging power. Will is the moving, the binding power.
Yet primarily and essentially, law is a function of reason. Will urges
to the doing of a certain act, but it urges in the case of a genuine law
under the guidance of intellect. The will that binds a subject inde­
pendently of the intellect is a principle not of law but of confusion and

5. Ibid., q. 91, a. 1.
6. Ibid., q. 92, a. 1.
7. Ibid., q. 90, a. 4.

destruction ( magis iniquitas quam lex”). Hence, inasmuch as the guid­
ing power is always principal and of more consequence than that which
is guided, we regard law as primarily and essentially a function of
reason, not of the will.8

B. For the Common Good. The second part of the definition
indicates the general object or final cause of law. Laws are
formed essentially for the promotion of the common good, as
part to the whole. Just as an architect regards primarily not the
parts of the building but the whole edifice — to which the parts
are subordinated — and only in a secondary way considers the
perfection of its parts, so too law has reference primarily to the
order which is to be followed in securing the common good, and
secondarily to the good of the individual as such. Many laws
bind only a part of the community, but these laws are always
made so that the particular group with special duties may occupy
its rightful place as part of the whole community.89
C. By Him Who Has Charge of the Community. "... A
law, properly speaking, regards first and foremost the order to
the common good. Now, to order anything to the common good
belongs either to the whole people or to someone who is the
vicegerent of the whole people. Hence the making of a law
belongs either to the whole people or to a public personage who
has the care of the whole people; for in all other matters the
directing of anything to the end concerns him to whom the end
belongs.”10 Obviously, as Cajetanus points out, Saint Thomas
speaks only of civil governments and civil laws in this article.
Our Lord and Saviour appointed Saint Peter and His successors
as head of the Church with full power to rule the Church. They

8. The Science of Ethics (New York, 1937), I, 634.
9. Summa Theol., la Ilae, q. 90, a. 3.
10. Ibid., q. 90, a. 3.

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XV1.

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are Vicars of Christ, not the vicegerents of the people.11 Since,
according to Sacred Scriptures, the power to govern comes from
the people do not hand over authority to the head of the
State; they merely have the right to name the person or the body
of persons who shall exercise the authority which God gives to
civil rulers.11
1213As long as justice is observed, the people may choose
their rulers in any manner they wish, and they can adopt the
form of government they prefer. Once, however, the head of the
State is appointed or agreed upon, he becomes the efficient cause
of law. He alone has the public power and jurisdiction to estab­
ι·ι·ι·
lish laws, to declare rights, to impose
obligations, and to punish
transgressors of the law with grave penalties. Even laws which
arise from custom must have at least the implicit consent of the
legislator.15 It might be well to note that only a perfect com­
munity is capable of receiving laws ; that is, a society complete in
itself which has sufficient means and capabilities of achieving its
end and is independent of every other society. For example, the
whole human race under God, the individual State in regard to
its citizens, and the Church in regard to the faithful are perfect
societies.14
D. Promulgated. A law is said to be promulgated when it is
officially manifested to the community in an authentic and public
manner. A law is promulgated authentically when it is published
with certain solemnities either by the legislator himself or by a
source authorized by him. It is publicly promulgated when an­
nounced in such a manner that citizens may learn of its existence.
Laws are promulgated in various ways.15 The exact manner of
promulgating a civil law is determined by the lawgiver or by
11.
12.
13.
14.
15.

Cf. Rom. 13:1-7.
Cf. Leo XIII, Encyclical Immortale Dei, §2.
Summa Theol., la Ilae, q. 97, a. 3 ad 3.
Merkelbach, op. cit., Vol. II, no. 222.
In regard to Ecclesiastical Law, see canon 9 of the Code.

the constitution of the State. Laws begin to bind when they are
sufficiently promulgated, unless their force is officially suspended
until a certain day.1617A law is considered to be sufficiently pro­
mulgated if means have been taken so that all subject to it can
per se be informed of its existence. Even if per accidens the
knowledge has not come to some, the law obliges in the external
forum; in the internal forum, however, he who does not know of
the existence of the law does not sin in violating it.
As to whether or not promulgation belongs to the essence
of law, there is a dispute. Those who deny that promulgation
belongs to the essence of law argue that a rule or measure
must exist before it is applied, and they say that promulgation
pertains only to the law in actu secundo.11 Those who insist
that it belongs to the essence of law argue from the words
of Gratian, quoted by Saint Thomas: ''Laws are instituted
when they are promulgated.”18 They claim that a law which is
not promulgated is not a complete law in actu primo, but is only
in an inchoative state.19 But, as Wouters remarks: ''The dispute
is speculative and not practical, because promulgation is necessary
so that a law may obtain its obligatory force. Hence he who
might know from some other source that a law has been made
would not be bound to its observance before it was promulgated.
In this sense we can take the words adopted by the Code from
Gratian.”20

16. Billuart, in Vol. IV of Cursus Theologiae (Lyons, 1889), Dissert. I,
art. 3, explains the various ways in which diverse laws are promulgated.
17. Billuart upholds the negative side of the question with solid arguments
(Cursus Theologiae, Vol. IV, Dissert. I, art. 3).
18. Summa Theol., la Ilae, q. 90, a. 4, "sed contra.”
19. Cf. Vermeersch, Theologia Moralis (Rome, 1933), Vol. I, Theologia
FUNDAMENTALIS, no. 156.
20. Cf. Wouters, Manuale Theologiae Moralis (Bruges, 1932), Vol. I,
no. 76.

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III. THE ACCEPTANCE OF A LAW
The consent of the governed need not be given for the valid
formation and the obligatory force of a just law. The opposite
error was condemned by Pope Alexander VII: "The people do not
sin even if, without cause, they do not receive a law promulgated
Just laws bind from the authority possessed by
by a prince.
the lawgiver. There are two exceptions to this rule, but they do
not violate the general principle, (a) In certain modem nations
lawmakers are bound by the norms of the established constitutions
not to pass certain grave measures until they have obtained the
consent of the people by a popular referendum, (b) When a law
is promulgated by the head of the nation, which the greater part
of the people prudently consider most inconvenient for their part
of the country, because of certain local conditions, an appeal may
be made to the legislator to repeal it, and in the meantime the
obligatory power of the law can be considered temporarily sus­
pended by the presumed consent of the legislator.21
22

IV. THE GENERAL DIVISION OF LAWS
Law can be considered in two ways, essentially and participatively. In the first manner we view law in God, the First Cause,
the principle and the end of all things according as He wills and
regulates all things. Since God receives no new concepts in time,
but possesses His omniscient knowledge and the omnipotent act
of His will from all eternity, law in God must be eternal. Law
in God is nothing else than the plan of Divine Wisdom directing
all acts and movements towards their due end. It is an ordination
in the Divine Mind directive of all things of the universe to their
ultimate end according to the purpose of their creation. The
21. "Populus non peccat etiamsi absque ulla causa non recipiat legem a princippromulgatam.” — Denzinger, Enchiridion Symbolorum, no. 1128.
K
22. Rapid modem means of communication have practically voided the applica­
tion of the principle.

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eternal law is actively promulgated from all eternity in so far as
the Divine Act is eternal. It is passively promulgated in time
in that creatures begin in time and only in time receive the im­
pression of the eternal law.23

All other laws, considering them as they are in creatures who
are ruled and measured according to the decrees of God, are
participative laws. They fall into two classes of law: natural and
positive. The natural law is nothing other than an ordination of
rational creatures to their end, which is established in nature itself
and perceived by the light of reason. The eternal law is the seal
and the natural law is its impression on the rational nature of
man. We may call it an inclination placed in creatures, moving
them to act according to their nature. Saint Thomas defines it as
"a participation of the eternal law in a rational creature.”24
Creatures, from inorganic through organic beings, including
rational and free creatures, fulfill the natural law by acting in
conformity with their nature. They naturally tend to their ap­
propriate ends. The proper end of man is happiness with God,
which is achieved through the perfection of virtue. Nor is the
natural law inconsistent with man’s proper end. It inclines him
towards the natural virtues, for this tendency is simply the expres­
sion of the natural law. In the field of man’s free actions or
moral acts, it is called the moral law.
There are two types of positive law, the divine and the human.
The divine positive law is a complexus of the ordinances which
God imposes upon men beyond those contained in the natural
law. They may be divine per se or per accidens. Regulations
belong to the divine positive law per se if they are not contained
in the natural law — for example, the ceremonial precepts given
to the Jews and the third commandment of the decalogue belong
23. Summa Theol., la Ilae, q. 93, a. 1.
24. Ibid., q. 91, a. 2.

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under this classification. Ordinances belong to the divine positive
law only per accidens if they are already contained in the natural
law; they are also proclaimed by the divine positive law in order
that they may be emphasized and that they may be more easily
and more surely known by all men.25
Divine positive law is divided according to time and the
manner of promulgation: (a) the primeval, which was not put
into writing, but revealed to the Patriarchs before the time of
Moses; (b) the Old Law or Mosaic Law, which was written and
promulgated by Moses; (c) the New or Evangelical Law, partly
handed down in tradition and partly written, which was instituted
by Christ and promulgated through the Apostles.
Human positive laws determine the divine and natural law in
its application in society when the need arises. There are two
types of perfect societies, the natural and the supernatural — or,
as they are generally called — civil and ecclesiastical. In this thesis
we are mainly concerned with civil laws and will touch upon
ecclesiastical law only in passing; we will not attempt to discuss
it in detail.

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V. THE EFFECTS OF A LAW

Saint Thomas clearly points out that the two effects of laws
are to promote virtue and to curb vices. These two consequences
are really the positive and the negative aspects of the ultimate
aim: to sanctify men.26 Human law, especially civil law, does not
attempt to wipe out every evil or to hasten righteousness. The
complexus of laws or the law of charity bears that heavy burden.
Law provides an atmosphere of peace in which men can live a
life of virtue, and with punishments it discourages those who
might think that their own individual likes and dislikes are more
important than the good of the community. Law imposes a

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25. Gredt, Elementa Philosophiae (Barcelona, 1946), Vol. II, Metaphysica
Ethica, no. 936.
26. Summa Theol., la Ilae, q. 92, and q. 96, a. 1, 2.

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certain restraint upon individuals who cannot always see their
purpose and thus resent the way magistrates seem to disregard
their wishes. Law is a help towards a more efficient and fuller life
for all. Walter Farrell, Ο. P., expresses the specific function of
civil law clearly and concisely:
Up to this time the majority of citizens of any state have not been
saints; probably they never will be. This fact gives us the clue to the
proper interpretation of the universality of law. This universality does
not mean that human law should prohibit all vices nor that it should
command all virtues; it is framed for the whole community and should
be suited to the ordinary condition of its subjects. Some vices it must
forbid, certainly those that threaten the very survival of the society;
some virtues it must command, certainly those which either directly or
indirectly can be ordained by human means to the common good. But
its aim is not to make men saints, but to give them peace and a chance
to work out their own individual sanctity.27

There can be no question, then, in setting the limits of civil
law. It extends only to the external acts of man, and then not to
all, but only to those which would tend to destroy the common­
wealth or injure others. Furthermore, civil law compels us to
provide certain temporal needs for each other, but all of us re­
ceive more benefits than we bestow.
The first and immediate effect of a law is an obligation to
do something, to avoid something, to permit something, or to
suffer a just punishment inflicted by lawful authority.28 An obliga­
tion is a necessity by which created beings tend through their
operations towards their proper end. This necessity is essentially
diverse in rational creatures and in irrational creatures. The latter
tend to their end by a determination of nature alone. Whereas
the former achieve their destiny according to the norms imposed
27. A Companion to the Summa (New York, 1938), II, 399.
28. In Summa Theol., la Hae, q. 92, a. 2, Saint Thomas speaks of these acts
of the law.

11

through the use of their own reason or by the reason of those
placed over them. The obligations imposed on rational creatures
are called moral: those that guide the other creatures are called
physical. A moral obligation may be defined as a necessity to
restrain oneself or to act in a certain manner in order to achieve
a desired end. Saint Thomas speaks of it as a "conditioned neces­
sity from the supposition of the end.”29 This is evident, because
the object of an obligation is always proposed by the will as some­
thing without which some necessary end cannot be obtained. The
physical liberty, moreover, of accepting or rejecting a moral ob­
ligation always remains intact. Saint Thomas, in treating of the
effects of law, makes no mention of obligations. He seems to take
it for granted that all know’ that the obligations flowing from the
the very nature of law — which is an effective dictate of practical
reasoning — must exist. The very nature of man indicates that
his guidance should not be physical, but rather the persuasive
force which we call a moral obligation. This conforms more to his
dignity.

VI. THE SANCTIONS OF LAW
This is another one of those modern terms applied to a point
that Saint Thomas called by another name. Moralists30 describe
a sanction as a complement of an obligation, as that which
strengthens and urges the observance of the law, as the rewards
established for those who observe the law, and the punishment
inflicted upon those who transgress it. There are two types of
sanctions, natural or internal, which immediately follow acts for
or against the law; and the positive or external, which do not
immediately follow but are provided by human law. Punitive
29. De Veritate, q. 17, a. 3.
30. Merkelbach, op. cit., Vol. II. no. 237; Noldin-Schmitt, Summa Theologiae
Moralis (Barcelona, 1945), Vol. I, De principiis theologiae moralis, no. 109;
Gredt, op. cit., Vol. II, no. 942; Rodrigo, Praelectiones Theologico-Morales
Comillenses (Santander, 1947), Vol. Il, no. 233.

12

sanctions without a doubt must exist; there are those who are
so inclined to evil that they can be curbed and led to virtue only
by a threat of punishment. Saint Thomas recognized this fact and
he gave it as one of the reasons for establishing human laws or
rather what he calls the discipline of the law.
... But since some are found to be dissolute and prone to vice and
not easily amenable to words, it was necessary for such to be restrained
from evil-doing by force and fear in order that at least they might desist
from evil-doing and leave others in peace, and that they themselves,
by being habituated in this way, might be brought to do willingly what
hitherto they did from fear, and thus become virtuous. Now this kind
of discipline, which compels through fear of punishment, is the disci­
pline of laws. Therefore, in order that man might have peace and
virtue, it was necessary for laws to be framed.31

Saint Thomas, however, did not seem to consider rewards for
those observing the law as a necessity. In his response to an ob­
jector who said that just as some men are moved to keep a
law by a threat of punishment, so others are led to observe a law
by a promise of a reward, Saint Thomas points out that a reward
can be given by anyone, but only a minister of the law can inflict
a punishment on a transgressor. Therefore to give a reward is
not an act of the law.32 From this response it would seem that
he did not consider a reward from a human legislator as a sanc­
tion of the law, at least in the restricted sense of the word. In
other words, it is not necessary that a legislator promise a reward,
but it is necessary that he threaten transgressors with punishments
in proportion to the gravity of their crimes. This is perfectly
31. '*... Sed quia inveniuntur quidam protervi et ad vitia proni, qui verbis de
facili moveri non possunt; necessarium fuit quod per vim vel metum cohiberentur
a malo ut saltem sic malefacere desistentes, et aliis quietam vitam redderent, et
ipsi tandem per hujusmodi assuetudinem ad hoc perducerentur quod voluntarie
facerent quae prius metu implebant, et sic fierent virtuosi. Hujusmodi autem disci­
plina cogens metu poenae, est disciplina legum. Unde necessarium fuit ad pacem
hominum et virtutem, quod leges ponerentur...." — Summa Theol., Ia Hae,
q. 95, a. 1.
32. Summa Theol., Ia Hae, q. 92, a. 2 ad 3.

13

Λ

logical, for if we keep the law we will obtain the end of the law,
the good towards which the law tends, which in itself is a
sufficient reward.
VIL THE MATERIAL OF LAW

From the definition of law, its material is manifestly anything
that will promote the general welfare or the common good.
Becoming more specific, we may speak of remote and proximate
material. The remote material of a law is a rational being, in­
asmuch as only such a being can be the subject of a moral obliga­
tion, the primary effect of law. The proximate object cannot be
other than the human acts of a rational being; because, properly
speaking, only by a human act can a man submit to a moral
obligation. Furthermore, external acts alone, which conduce to
the preservation of the external order, fall under the jurisdiction
of civil law. Of course, the law can prescribe the interior acts in
certain cases in which they are required for a complete exterior
act, as in the making of vows, the taking of oaths, and the draw­
ing up of contracts. Whether or not the Church can prescribe
internal acts is an interesting question which need not concern us
here, except in so far as it will assist us in more clearly perceiving
the limitations of human law, when we touch the highlights of
the dispute.

Those who hold the affirmative view say that the Church has
authority from Christ to demand whatever is necessary for the
salvation of men. But the performance of certain internal acts
is necessary that men may save their souls. Therefore the Church
has the power to prescribe internal acts.” Those who hold the
negative view declare that every act which comes under the power
33. Cf. Noldin-Schmitt, op. ch., Vol. I, no. 138, and A. G. Cicognani, Canon
Law, translated by Joseph M. O’Hara and Francis Brennan (Westminster, Md.
1947)» PP· 526-529, for a. defense of the positive opinion.

I

Α··ν

■■

of the Church in concreto is a mixed act and that the others are
commanded by divine law. In fact, they point out that the pre­
scribing of interior acts is one of the reasons for the existence of
the divine positive law. In general those who hold the negative
opinion present the following assertion of Saint Thomas as their
major argument:
. . . Man can make laws in those matters of which he is competent to
judge. But man is not competent to judge of interior movements that
are hidden, but only of exterior acts which are observable... ,34

The fact that civil magistrates cannot judge interior acts is a
principle which has far-reaching consequences. It seems to be
the reason why they punish an individual for acts against the law
in which there was probably very little, if any, formal guilt. That
is why the courts will order an individual to pay the damages in­
flicted upon another man, even though there was no more than
material guilt involved in the cause. We will have more to say
about this matter when we consider the problem of juridical guilt
and the penal law.
The law, save for a few exceptions, regulates and measures
only future acts. The law does not turn its eyes backwards, that
is, in regard to its directive power. Law according to its nature
affects only the future. Law cannot permit, cannot command,
cannot forbid things that have happened previously. Moreover,
it would be more than useless to declare a past irrevocable act
invalid. Furthermore, it would be an act of cruelty rather than an
act of reason to use coercive measures upon people for acts that
were not forbidden by law at the time they were placed. As a
general rule, therefore, past acts completed before the law has
been promulgated are not punishable. Unless a great necessity
34. "... de his potest homo legem facere, de quibus potest judicare. Judicium
autem hominis esse non potest de interioribus motibus qui latent, sed solum de
exterioribus actibus qui apparent.” — Summa Theol., Ia Hae, q. 91, a. 4.

15

for the common good demands it, even revocable acts placed in
the past should not be declared invalid. The magistrate, never­
theless, always retains the authority to inflict a legal penalty
for something which another law forbids, especially if the offense
was against the natural law’. Even this should be done with
prudence.35
External occult acts, since they are really external, are not
excluded from the power of human positive law. The fact that
the}’ are not immediately known is per accidens. The fact is that
they can become known; and, likewise, the fact that the magis­
trate is not able to judge them and here and now is per accidens.
The Church, therefore, is within her rights in punishing occult
homicide by prohibiting the culprit from the reception and ex­
ercise of Holy Orders — that is, by imposing on him the impedi­
ment of irregularity.36
Heroic acts, being exceedingly difficult and practically impos­
sible for the majority of men, cannot be classified as material
of the law in the ordinary sense. Heroic acts, however, can and
indeed must be demanded in cases of extreme necessity in which
the common good w’ould suffer irreparable injury. Heroic acts
oblige an individual when he embraces a profession or vocation
in which such acts are required for the fulfillment of his office.
For example, a policeman must chase a dangerous criminal, even
though he risks his own life; a soldier must undertake a perilous
mission when commanded to do so; a doctor must assist the sick
afflicted with highly contagious diseases. Génicot-Salsman gives
another case in which heroic acts can be demanded and offers
an example to illustrate the condition;37 heroic acts can be de­
manded if they are considered necessary for the preservation of
some state. The reason is that when we embrace any state, vir­
tually we oblige ourselves to those things which are morally
35. Cf. Merkelbach, op. cit., Vol. I, De principiis et virtutibus no. 280.
36. Cf. Aertnys-Damen, op. cit., Vol. I, no. 42; Wouters, op. cit., Vol. I, no. 117.
37. Institutiones Theologiae Moralis (Brussels, 1946), Vol. I, no. 102.

16

necessary for its conservation. For example, Boniface VIII and
the Council of Trent, judging that perpetual cloister was necessary
for certain communities of nuns, imposed that obligation upon
them even though they had not been bound to it by their rule.
Radically, there are only three types of human acts: virtuous,
evil and indifferent. The last-named, however, in concreto are
always either good or bad, depending upon the intention with
which they are placed, or the circumstances. The acts of the law,
then, are, logically divided into three classes: those that com­
mand virtuous acts, those that forbid vices, and those that permit
indifferent acts. In addition, it must be said that in so far as the
lawmaker has authority to add sanctions to a law, to punish a
transgressor can be considered an act of the law. Some object that
permitting a thing cannot be an act. That is not true, because in
permitting indifferent acts the law is actually forbidding anyone
to interfere when an individual wishes to place an indifferent act.
The law provides protection and safeguards in this case.38
An affirmative law does not exact a continual performance of
virtuous acts, but only as the occasion requires them. Negative
measures, on the other hand, demand a perpetual omission of the
acts prohibited.

VIII. THE QUALITIES OF POSITIVE LAW

The positive law must first be in accord with the divine law.
An honest human command must always promote and not disturb
the relationship between man and God. From this principle it is
easy to see that civil legislators have no authority to grant di­
vorces.384 And laws which impede the preaching of the Gospel are
38. Summa Theol., la Ilae, q. 93, a. 2.
38a. Although the law granting a perfect divorce with a right to remarry is
certainly invalid, a Catholic lawyer can co-operate materially within the limits pre­
scribed by diocesan regulations. Of course, the lawyer must have a good reason
for so co-operating.

automatically invalid. Secondly, civil law, since it is no more than
an application and a determination of the natural law, cannot
command anything contrary’ to the natural law.39 Thirdly, civil
laws must be for the utility of men; that is, they must either pro­
tect or promote the general welfare, the common good; otherwise
there does not exist a sufficient reason for restricting the freedom
of the members of the commonwealth. Saint Thomas says that
all the other conditions necessary for a law, which authors were
accustomed to give after the time of Isidore of Seville, can be
reduced to the three conditions mentioned above: namely, a law
should be just, possible to nature, according to the customs of
the country, adapted to place and time, etc.

It was in defense of the first two required qualities that
Pius IX condemned the two following propositions:40
The laws of morals do not need a divine sanction, and least of all is it
necessary that human laws be conformed to the law of nature or receive
the power of obliging from God.
The science of philosophical thinking and of morals, likewise civil laws,
can and ought to be divorced from divine and ecclesiastical authority.

When we become more specific about the qualities of law,
certainly all agree that laws must be just. To deserve that title, a
law must have three characteristics. It must be for the good of

39. "The natural law is above the civil law, is deeper and more fundamental; it
is itself the ground of the civil powers, and gives to the civil powers all their
authority. The civil law, therefore, cannot act contrary to the natural law, and
laws enacted in contravention of nature are invalid from their very foundation." —
Cronin, The Science of Ethics, II, 551.
40. "Morum leges divina haud egent sanctione minimeque opus est ut humanae
leges ad naturae jus conformentur aut obligandi cum a Deo accipiant.” — Denzinger,
op. ch., no. 1756.
"Philosophicarum rerum morumque scientia item, civiles leges possunt et de­
bent a divina et ecclesiastica auctoritate declinare.” — Denzinger, op. cit., no. 757.

18

à

the citizens considered as a whole; it must impose burdens upon its
subjects in proportion to their ability and strength. It must be
imposed by a legitimate lawmaker who does not exceed his
authority. In brief, a just law is one that does not violate legal,
distributive, or commutative justice.41
Some authors42 place perpetuity in a special classification called
"The Properties of Law”; but, after all, a property is no more
than a permanent quality. It seems, therefore, that perpetuity
can be placed here under a more general title. Law may have
either positive or negative stability. Certainly, the eternal and
the natural law possess positive or absolute stability from their
very essence. The same cannot be said for human laws, since the
necessity or convenience which gives rise to them may pass away;
then the laws become a useless burden, and in some cases may
prove harmful to those whom they were supposed to assist. Con­
ditions may change, therefore, to such an extent that the legislator
is bound to change the law. Civil laws, nevertheless, do possess a
negative stability in so far as they exist until they are repealed by
the civil authorities. It also happens that a change in the material
of the law gives rise to a custom against an outmoded law and it
becomes void with only the tacit or implied consent of the legis­
lators. Since civil laws provide for the more or less permanent
needs of a stable society, they should have at least a negative
perpetuity. Then, too, it is clear that unstable and insecure laws
would injure the common good, and destroy the end for which
laws are made.
All laws also possess a certain universality.43 They are not
particular ordinances. They are made for the State or nation as

41. Summa Theol., la Ilae, q. 96, a. 4.
42. Cf. Rodrigo, Praelectiones, Vol. II, no. 17; Peinador,
Moralis Fundamentalis (Madrid, 1945), Vol. I, no. 347.
43. Cf. A Companion to the Summa, II, 399.

19

Theologia

• *

a whole, for many different people, for many different periods,
for many different acts. They are established for the present and
for succeeding generations in society. Law, therefore, has not
only a perpetuity but also a certain universality of its own.

Chapter II
CIVIL SOCIETY AND ITS AUTHORITY
I. SOCIETY IN GENERAL

OCIETY can be defined as a moral and stable union of many
working towards the same common end. The final cause
of society evidently is some good which those working together
would not be able to obtain alone. The formal cause is the union
which is called moral because it consists of rights and duties which
bind the members of society to work jointly for the general wel­
fare. The material cause of society is beings endowed with a
rational nature who alone are capable of rights and moral obliga­
tions. The efficient cause is the obligatory bond or moral union
which constitutes society. The origin of the obligatory bond or
moral union is disputed.1 Later on in this chapter we will discuss
this point and offer a solution.2
Moreover, in every established society there must be someone
in charge who constantly and efficaciously directs the citizens to
their common end: namely, an authority, one who possesses the
right of obliging all the members to co-operate in things necessary
for the maintenance of the commonwealth. **A society can neither
exist nor be conceived of in which there is no one to govern the
wills of individuals in such a way as to make, as it were, one will
out of many and to impel them rightly and in an orderly way
towards the common good. Therefore, God has willed that in a
civil society there should be someone to rule the multitude.”5
Authority should be given only to one, either to one individual
or to a group acting as one. There may be, and in many cases

1. Cf. Gredt, op. cit., Vol. II, no. 1107.
2. Cf. nos. VI and VII of this chapter.
3. Leo XIII, Encyclical Diuturnum, no. 7.

21

there should be, subordinate directors, but they act only with the
authority derived from and in the name of the supreme authority.45

II. THE DIVISIONS OF SOCIETY
Considered according to its origin, a society can be natural
or sitive; that is, a society either takes its origin from the very
nature of men, or it is a convenient association over and above
the absolute needs of man created by mutual agreement or positive
law. Considered according to its perfection, a society can be
perfect or imperfect, according as it possesses or does not possess
self-sufficiency — that is, all the means necessary to achieve its
purpose of existence. Considered in its extent, a society can be
universal or particular. In this sense we speak of all mankind as
being members of a universal society under God and then of
each state as a particular society?

III. THE NECESSITY OF SOCIETY
Man is naturally a social animal.6 He is so constituted that
he must live in society. "Man’s natural instincts move him to live
in civil society.”7 Isolated, he cannot provide himself with the

4. Cf. Cathrein, Philosophia Moralis (Barcelona, 1945), no. 506.
5. Cronin, op. cit., II, 387.
6. Summa Theol., Ila Ilae, q. 109, a. 3, ad 1; Gredt, op. cit., Vol. II, no 1012.
7. "Sociality is just as constitutive of the essential nature of man as his ration­
ality; sociality so pertains to man’s nature that a definition which omits this con­
stitutive element must be considered incomplete. It is, therefore, nothing superadded ;
it is equally original. The individual person and the community are ontologically
so related to each other that they can have no existence independently of each other.
Even though the individual person may always have genuine self-subsistence and
hence a unique kind of being, he has at the same time a limited existence that does
not yet realize the idea of man perfectly. Man is perfected only in the community.
It is essential for him to be a member of enduring communities." — H. Rommen,
The Natural Law, translated by Thomas R. Hanley (St. Louis, Mo · 1947)’
p. 236.

22

necessary requirements of life nor procure the means of develop­
ing his mental and moral faculties. It is therefore divinely or­
dained that he should lead his life, be it domestic, social, or civil,
in contact with his fellow man, where alone his several wants can
adequately be supplied.”8 "And indeed nature or rather God,
who is the author of nature, wills that man should live in civil
society, and this is shown clearly both by the faculty of language,
the greatest medium of intercourse, and the many things which
men when isolated cannot provide but which they can procure
when associated with others.”9 God ordained man for the im­
perfect happiness of this life as well as for perfect happiness in
eternity. In order to obtain his terrestrial end, man requires many
things which only an organized society can provide; for example,
nourishment and clothing, protection and education, guidance and
correction, friendship and love. No man can stand alone, nor
is anyone permitted to stand alone. As the Angelic Doctor says:
Because man is naturally a social animal, one must give to
another that without which no society can be preserved.” Two
societies are absolutely necessary for man in his present state,
domestic and civil.
IV.

THE NECESSITY OF DOMESTIC SOCIETY

Saint Thomas proposes the question of whether or not matri­
mony is natural.1011Billuart points out that the sense of this ques­
tion is not whether or not the act of cotius is natural, but whether
or not man beyond all the other animals, created male and
female for the office of generation, is to be joined in an indis­
soluble bond; for that is what we mean by matrimony.11 Saint
Thomas quotes Aristotle, who said: "Man is more naturally a
8.
9.
10.
11.

Leo XIII, Immortale Dei, § 1.
Leo XIII, Diuturnum, § 4.
Supplementum, q. 41, a. 1.
Cursus Theologiae, Vol. X, Tractatus

23

de

Matrimonio, Dissert. I, a. 11.

conjugal than a political animal.”12 But man is naturally a politi­
cal and gregarious animal, as the philosopher said in another
place.13 Man, therefore, is naturally conjugal, and the yoke of
matrimony is natural. In the body of the article, Saint Thomas
shows that matrimony is an indissoluble union, because nature
not only intends the generation of children, but also the rearing
of them to perfect manhood, which cannot be accomplished un­
less the parents and their children live harmoniously in a domes­
tic society, at least until the children have grown to adult age and
are able to provide for th •ill selves. This clearly is the natural law.
The divine law demands the indissolubility of consummated
marriage.

V. THE NECESSITY OF CIVIL SOCIETY

Although even one domestic unit is certainly more self-suf­
ficient than an individual, yet obviously one family living com­
pletely apart from all others can provide no more than the
barest essentials for its existence. Domestic society cannot
provide those things necessary for the full development of man’s
faculties, for the furthering of that culture which befits man’s
dignity. Man, in becoming an active member of civil society,
does not submerge himself, but rather expands his personality
from a limited, impoverished state of isolation and self-sufficiency
into the full man. Not to have advantages which are possible
in an established commonwealth dwarfs the power and scope of
an individual’s activities. Families living in the same locality must
organize a civil society in order to establish hospitals, educational
and religious institutions, means of transportation and commerce,
methods of safeguarding individual rights and protection from
12. Cf. Saint Thomas, In Decem Libros Ethicorum Aristotelis
machum Exposito, nos. 4, 112, 1391, 1719, 1891.
13. Idem., nos 1719, 1891.

24

wt

ad

Nico-

enemies.14 Only an organized government with authority can
perfect, among families living in the same territory, those things
that make for peace and avoid confusion. Only a government
with authority can correct inordinate tendencies, and encourage
the perfect accomplishment of all activities that increase the well­
being of all.
VI. THE ORIGIN OF CIVIL AUTHORITY

Many philosophers outside the Church, influenced by Hobbes
and Rousseau, deny that man is a social animal and also refuse
to admit that civil authority comes from God. They teach that
civil society takes its origin from a contract freely entered into
outside any inclination found in the nature of man. They claim
that the obligation of submitting to legitimate authority depends
only on the social contract voluntarily entered into. Much has
been written on the subject. Leo XIII summarizes for all men
the Catholic response to such errors:
Those who believe civil society to have arisen from the free consent of
men looking for the origin of its authority from the same source, say
that each individual has given up something of his right, and that
voluntarily every person has put himself in the power of one man, in
whose person the whole of those rights has been centered. But it is a
great error not to see what is manifest: that men, as they are not a
nomad race, have been created, without their free will, for a natural
community of life. It is plain, moreover, that the agreement which they
allege, is openly a falsehood and a fiction and that it has no authority
to confer on political power such great force, dignity and firmness as
the safety of the State and the common good require. Then only will
the government have all those ornaments and guarantees, when it is
understood to emanate from God as its august and most sacred source.15

14. Saint Thomas, De Regimine Principum, I, 15.
15. Diuturnum, §8.

aw

.·:

VII. ITS MODE OF ORIGIN

All Catholic philosophers and theologians freely admit that
civil society and its authority come from God. They disagree,
however, in their explanations of the manner in which this is
done. Suarez, Bellarmine and their disciples teach that the people
themselves are the immediate supreme subject of the authority
which they bestow upon their chosen chief of state.16 Others
deny both that society need originate from any type of pact what­
soever, and that the people themselves primarily possess the
supreme authority.
Gredt offers a compromise view,1' and it seems to be a very
good solution of the dispute. The State originates from an im­
plicit pact, one which the natural law’ demanded from a social
animal obliged to live in union with his fellow creatures. It is a
free contract in so far as the natural law does not determine
which families or how many shall be included in any specific
commonwealth. Nor does the natural law determine what kind
of government the people shall adopt: monarchial government,
by one; aristocratical government, by a few; or a democratic
government, by many. All three forms are permitted as long as
justice is observed and the general prosperity is taken care of.
The power of government lies, first, in the hands of the
citizens as a whole; they select one or a group from their number
who shall have the full right and authority to govern. The peo­
ple hold that pow’er only instrumentally, imperfectly, transiently,
although vitally, and they must designate someone or a body of
individuals to direct efficaciously the common good. It is evident
that a large number of families occupying a great territory could
not of themselves lay down laws and enforce them effectively.
16. Bellarmine, De Controversiis, Tom. II, i. 3 (Rome, 1886), "De Laicis
6; Suarez. Tractatus de Legibus, I, iii, c. 3 and 4.
17. Elementa Philosophiae, Vol. II, nos. 1032-1033.

26

-ϊ.!·

Their sheer lack of unity imposes upon them the duty of choosing
a governor who will direct the State towards the end for which
it exists. The rulers, being duly appointed by a free election of
the people or coming into power in any other legitimate way,
receive a certain sovereign power — that is, the right to command
and direct the multitude in everything necessary for the good of
the State. They could not function without sovereign power, but
they are limited in so far as they cannot command internal or
external matters more than is necessary. Sovereignty confers a
right of direction over all the parts of the State and a right to
command those parts, but only in so far as the good of the
whole requires.
The people, of course, have a perfect right to retain a part
of the sovereignty in their own hands. They can limit the power
of their rulers, but not to the point of rendering the government
useless and ineffective. The organization of the supreme power
in the State, the separation of the authority into different branches,
etc., is determined and set upon a firm basis by the constitution
of each nation. The constitution is the sum of laws which
regulates the function of the government.18

VIII. GOD CONFERS THE AUTHORITY
The people do no more than designate the person or the
group that is to hold the sovereign power; the actual right to use
it comes from God. This is the clear teaching of the Church as
expressed by the Scriptures and papal pronouncements. There is
no true and lawful authority, says Pope Leo XIII, except that
which comes from God, the sovereign Lord of all, who alone
has the power to give man authority over his fellow man.19

18. Cf. Cronin, op. cit., II, 545-550.
19. Encyclical Sapientiae Christianae, § 3.

27

Since plainly no civil society can function unless there is someone
in charge directing things, this authority no less than society itself
has its ultimate source in God. It must then proceed from God.
Indeed all things must be subject to Him and must serve Him.
Therefore, he who holds the authority to govern has it from
God, the Sovereign Ruler of all. Hear again the voice of Pope
Leo XIII in this matter:
And other than this opinion, it is impossible that any should be found
not only more true but even more advantageous. For the authority of
the rulers of a State, if it be a certain communication of divine power,
will by that very reason immediately acquire a dignity greater than
human — not indeed that impious and most absurd dignity sometimes
desired by heathen emperors when affecting divine honors, but a true
and solid one, received by a certain gift and benefaction. When it will
behoove citizens to submit themselves and to be obedient to the rulers,
as to God, not so much through fear of punishment as through respect
for their majesty, nor for the sake of pleasing but through conscience
as doing their duty. And by this means authority will remain far
more firmly seated in its place. For the citizens perceiving the force of
this duty would necessarily avoid dishonesty and contumacy, because
they must be persuaded that those who resist state authority resist the
Divine Will, that those who refuse honors to rulers, refuse it to
God Himself.20

IX. PROOFS FROM SCRIPTURE

The power of civil authority to govern, to make and to en­
force laws finds ample confirmation in the books of Sacred
Scripture. The most frequently quoted text is the following: ’’By
Me kings reign and lawgivers establish justice.”21 Saint Paul states
the same doctrine in his Epistle to the Romans:
20. Diuturnum, §9.
21. Prov. 8:15-16.

>v,

7

•V

Let everyone be subject to the higher authorities, for there exists no
authority except from God, and those who exist have been appointed
by God. Therefore he who resists the authority resists the ordinance
of God; and they that resist bring on themselves condemnation. For
rules are a terror not to the good work but to the evil. Dost thou wish,
then, not to fear the authority? Do what is good and thou wilt have
praise from it. For it is God's minister to thee for good. But if thou
dost what is evil, fear, for not without reason does it carry the sword.
For it is God’s minister, an avenger to execute wrath on him who does
evil. Wherefore you must needs be subject not only because of the
wrath, but also for conscience’ sake. For this is also why you pay tribute,
for they are the ministers of God, serving unto this very end. Render
to all men whatever is their due; tribute to whom tribute is due; taxes
to whom taxes are due; fear to whom fear is due; honor to whom honor
is due.22

Saint Peter expresses the same doctrine in the second chapter
of his first Epistle.23 Both he and Saint Paul were but echoing
the doctrine uttered by the Divine Master in His response to the
Pharisees: "Render, therefore, to Caesar the things that are
Caesar’s, and to God the things that are God’s.’’24 Who can
doubt that in that answer our Lord and Saviour taught that we
are obliged to obey the laws established by secular rulers? And
then note that in the comparison made by Christ the obligation
is identical in both instances, an obligation in conscience.

From the testimony of Sacred Scripture it is evident that those
who are in charge of a community receive their power from God.
Consequently, they are ministers, instruments of God, employed
to preserve peace and promote the common good. Considering
the origin of their authority and the purpose for which it is
bestowed, one can conclude that civil laws bind in conscience.

22. Rom. 13:1-7.
23. I Peter 2:13-17.
24. Mark 12:13-17.

N*

Sacred Scripture says that legislators act in the name of God
when they decree justice.” Their regulations which, as we have
said a number of times, are enacted only to apply the higher
laws to specific conditions, bind in conscience the same as the
eternal law. A glance at the causal relationship between the
eternal law and the human law' tells us the same thing. Human
law holds itself as a proximate and secondary cause which de­
pends upon the eternal law as the remote and primary cause.
A proximate and secondary’ cause has the force of its effects from
the primary and remote cause; but the effect of eternal law is an
obligation in conscience. Human law's, therefore, also oblige in
the same manner.

X. AN ESSENTIAL ELEMENT
Indeed human positive law' must impose such an obligation
in order to live up to the essential notion of law. For law, as a
command or dictate of practical reason, necessarily implies a
moral obligation, a connection of some necessity between the act
commanded and the end for which that act is commanded. "The
same truth,” says Father Farrell, "is brought out when we remem­
ber that human law is derived from natural moral law, or that
it is derived from eternal law. Either way it is traced back to the
essential order of things and ultimately to the mind of God as
the supreme source of truth and law. From Saint Thomas’ point
of view, a law that does not oblige in conscience is, strictly speak­
ing, not a law.”25
26
Of course, only a true law binds in conscience, one that is
just, that does not violate legal, commutative, or distributive jus­
tice. A law is just according to its form when burdens are placed
upon the subjects according to an equality of proportion; from its
25. Prov. 8:15-16.
26. Farrell, A Companion

to the

Summa, II, 399-400.

30

end it is just when it tends to the common good, and from its
author when he does not exceed his lawful authority.27 Of
course, it is possible "per accidens” for an unjust law also to
oblige in order to avoid a greater evil, such as scandal or per­
sonal injury.27
28 If, however, a law is not only unjust, but also
contrary to divine law, it is forbidden to obey it, according to the
words of Saint Peter: "We must obey God rather than men.’’29

27. Summa Theol., la Ilae, q. 96, a. 4.
28. "Yet it may, at times be right to obey even an unjust positive law (one that
is not against the natural law — e. g., a law’ that imposes an unjust tax burden),
because the higher natural-law norm enjoins in individual cases the sacrifice of a
particular good to a more general good. For instance, the general goods of security
under law and the external order of peace constitute a higher value than does the
individual right to just treatment in the levying of taxes. It is consequently not the
unjust law that binds, but the higher norm of peace and maintenance of the com­
munity." — Rommen, op. cit., p. 55.
29. Acts 5:29.

Chapter III
THE PENAL LAW THEORY

I. THE DIVISIONS OF CIVIL LAW
CURSORY examination of even a few manuals of moral
theology will demonstrate that an infinite variety of divi­
sions of civil laws is possible. However, since the appearance of
Castro’s work,1 Tractatus de Potestate Legis Poenalis, in the first
part of the sixteenth century, most authors have divided laws
according to their obligations, into three classes: First, the simply
preceptive laws, such as the law commanding attendance at Mass
on Sunday, which produces a moral obligation. Secondly, there
are the mixed penal laws which impose both a temporal punish­
ment and moral guilt: for example, a Canon is bound to recite
the Divine Office; and if he does not, he not only is guilty of sin
but is also deprived of his stipend when he is not present at the
choral recitation. Thirdly, there are the so-called purely penal
laws which oblige not as regards the placing or omission of the
act commanded by the law but only as regards the acceptance of
the penalty imposed for the violation of the law.

II. THE DEFINITION OF A PENAL LAW
Not all authors agree when it comes to defining a penal law,
but the different definitions they propose seem to differ only
verbally rather than in reality. Alphonsus de Castro defines a
penal law thus: "A law establishes a penalty to be inflicted on
1. At least Navarrus (Commentarii de Lege Poenali, no. 26), says that
Castro was the first to classify laws in this fashion. There is no evidence to prove
the contrary, but it is evident that Castro simply amplified and clarified the divi­
sions which Angelus a Clavasio had made.

>

· '·

someone on account of a fault committed.”2 Navarrus says it
is that which imposes a privation of some good without reason
of one’s own fault, or indeed of another’s fault, nevertheless,
on account of some fault, which seems just to the legislator.2
3
Among modern authors the definition which Aertnys-Damen
proposes is typical: ”A purely penal law is one that imposes a
penalty on those who do or omit something without prescribing
the doing or omission of that thing under moral guilt.”4 Merkelbach’s definition seems to be more to the point. ”A purely penal
law is one that does not oblige the subject in conscience to do
what the law prescribes, but does oblige him in conscience not to
resist infliction of a penalty and to undergo the penalty in case
of a transgression.”5 Peinador says that his definition will be
acceptable to all: "a law stating some penalty for the transgres­
sion of some precept.”6 The distinguishing feature always re­
mains: namely, the absence of moral guilt or of moral obligation,
except in connection with the penalty. The object of the law may
be disregarded as long as one is willing to undergo the penalty
which the civil magistrates may inflict for the violation of the law.
III. THE HISTORY OF THE

PURELY PENAL LAW THEORY

Generally, both the older commentators and present-day
writers7 freely admit that the theory made its first appearance in
an insert placed in the prologue of the Dominican Constitutions
by the General Chapter held in the year 1236, which reads as
2. Tractatus de Potestate Legis Poenalis, I, i,. c. 3.
3. Commentarii de Lege Poenalis, *’C. Fraternis,” no. 14.
4. Theologia Moralis, Vol. I, no. 58.
5. Summa Theologia Moralis, Vol. I, no. 287.
6. Theologia Moralis Fundamentalis, Vol. I, no. 264.
7. Cf. Van Hove, De Legibus Ecclesiasticis (Malines, 1930), no. 148; and
Michiels, Normae Generales Juris Canonici (Tournai, 1949), I, 261, for
references.

H* -

follows: "In order, therefore, to provide for the unity and peace
of the whole order, we will and we declare that our rule does
not oblige ad culpam but ad poenam unless on account of precept
or contempt. "s
The next step in the development of the theory is the declara­
tion of Henry of Ghent,89 who used a lot of space to show the
reasonableness and fitness of penal laws in religious orders. He
states the conditions necessary for applying them in communities;
then, without giving reason or explanation, he closes his article
with the following statement: "And it is also thus with the
statutes of princes and prelates in similar cases." In speaking,
however, of the rules of religious communities, he did say, "ad
intentionem statuentis,” It can, therefore, be presumed that in
civil laws he considered the will of the magistrate as a condition
necessary for the establishment of purely penal laws. As far as
we are able to trace it, that simple declaration of Henry of Ghent
transferring penal lawr theory from religious orders to civil
society was the first attempt to do so. Later writers began their
treatment of this question by agreeing or disagreeing with Henry
of Ghent until the time of Castro; after that many of them
began to agree or disagree with him.
About fifty years after Henry of Ghent made his proposal,
the Council of Toledo made a practical application of it in the
following words: "Lest they be burdened with the weight of
guilt through the violation of the provincial constitutions, the
faithful, upon whom the divine compassion has deigned merci­
fully to impose a sweet yoke and a lighter burden, we, with the
8. Monumenta Ordinis Praedicatorum Historiae, Tom. Ill, Acta Capit.
Gen., I, viii. Vangheluwe expresses dissatisfaction in accepting this as the origin
of the theory, but admits that since no earlier source can be found it must be ac­
cepted as the beginning of the theory. Cf. "De Lege Mere Poenali,” Ephemerides
Theologicae Lovanienses, Vol. XVI (1939). pp. 383-429.
9. "Et simile de statutis principum et praelatorum in consimile materia."_
Aurea Quodlibeta, Tom. Ill, q. 22.

34

approval of this Council, ordain that the provincial constitutions
of our predecessors, and those which will be established in the
future — unless expressly stated in the constitutions to be estab­
lished— oblige not as regards the guilt but only as regards the
penalty.”1011The theory of penal laws behind his declaration
is evident. The laws of the Synod contained true precepts. They
commanded or forbade the doing of certain things; hence it
would not be sinful to act contrary to the law unless the offender
would be unwilling to submit to the penalty when it was imposed.
There is no indication that the Synod was indifferent as to whether
or not the law was obeyed or the penalty accepted. The Synod
wanted the law kept, but it did not wish to burden anyone with
sin for transgressing the law, unless he refused to pay the penalty.
Crowe observes that this explanation of purely penal laws is
substantially the same as that which many modern authors con­
sider the only true explanation.11 Curiously enough, between the
Synod of Toledo and the end of the last century, this explanation
of the theory of penal laws suffered an almost total eclipse.
During this period the explanation of Angelus a Clavasio was
commonly accepted.12 He wrote in the fifteenth century: "Some­
times in statutes there are two precepts. For example, when it is
stated in the decree that no one shall do such a thing and he who
does it shall pay such a penalty; and then it obliges ad culpam et
poenam. Sometimes, truly, there is only one precept. For ex­
ample, when it is said: If anyone shall do such a thing, he shall
pay such a penalty; and so from the form of the law it would

10. "Ne onerentur culpae pondere ex transgressione constitutionum provicialium,
Christi fideles, quibus divina pietas jugo suavi et oneri leviori supponere miseri­
corditer est dignata, sacro approbante Concilio, ordinamus quod constitutiones
provinciales praedecessorum nostrorum, et quae in futurum condentur, nisi aliter in
condendis expresse fuerit ordinatum, non ad culpam, sed ad poenam tantum
earundem obligent transgressores." — Cf. Peinador, op. cit., Vol. I, no. 367.
11. Crowe, The Moral Obligation of Paying Just Taxes (Washington,
D.C., 1944), p. 87.
12. Summa Angelica, under the title "Inobedientia.”

35

Crowe points out that
oblige only as regards the penalty.
Angelus a Clavasio was mistaken in saying that Johannes Andreas
favored this application of penal laws; that author restricted
his discussion of penal laws to religious communities alone.13
It was the general trend until recent times to divide laws
more according to the wording than according to the gravity of
the matter. The extent to which this conception of the obligations
of penal laws influenced writers can be seen in the examples
Castro gives of a penal law. The following is one of the examples
he offers. "If anyone (God said through Moses) shall have
stolen a cow or a sheep, and shall have sold or killed it, let him
restore five cows for one cow,” etc.14 On the contrary, it is the
opinion of very many authors that such laws in the Old Testa­
ment were not merely penal laws but mixed laws, and if no
penalty was attached, then they were merely moral laws binding
in conscience in regard to the act prescribed.15 Castro was mis­
taken simply because in defining its characteristics he adhered
too closely to the formula in which the law was expressed.

Even Saint Alphonsus16 wrote:
And this before all must be known: that a purely penal law is one
which gives no precept; v. g., whoever does this shall pay a penalty;
and this does not oblige in conscience even though the penalty is most
grave.... Another is a law not purely penal but mixed, which prescribes
and also imposes a penalty; v. g., no one shall do this, sub poena, etc.
tiF

A comparison between Castro and Merkelbach reveals strik­
ingly the old and the new concept of penal laws. The former17
defines a purely penal law as one that does not prescribe or forbid
13. Cf. In Tertium Decretalium Novella Commentaria, c. VII
Clerici vel Monaci,” III, 1, no. 2, p. 242.
14. Op. cit., col. 1615.
15. Cf. Rodrigo, op. cit., Vol. II, no. 341.
16. Theologia Moralis, I, Tract II, no. 145.
17. Tractatus de Potestate Legis Poenalis, I, c. ix, col. 1613.

* ■ · ts

»*·.>· . ■

36

"Ne

t

(

the doing of anything, but merely imposes a penalty on him who
does something or omits doing something. A mixed law —
Castro called it a mixed law — is one that prescribes the doing
of something and moreover prescribes a penalty against one who
transgresses the law. A purely moral law prescribes or forbids
something without designating any penalty. Merkelbach, on the
other hand, says: "Certain civil laws are moral or preceptive
which strictly oblige the subject in conscience to do what is stated
in the law, also at times under punishment — in which case they
are also penal and are called mixed; certain ones are merely
penal which oblige the subject in conscience not to do what is
stated in the law, but only not to resist the infliction of a penalty
in case of a transgression and to undergo the punishment in­
flicted."18
There is a significant difference between the two authors.
For Castro a purely penal law was simply a law which imposed
a penalty but did not definitely command or forbid anything out­
side the penalty enjoined. If the law would have prescribed some­
thing, Castro would have considered it a mixed penal law obliging
to both the penalty and the act. Whereas, for Merkelbach and
many other modern theologians, a purely penal law may definitely
command or forbid something, provided the only obligation it
imposes is the accepting of the penalty if and when it is justly
imposed.
Navarrus complained that every law which Castro calls purely
moral seems to oblige under pain of venial or mortal sin and
consequently also under eternal or temporal punishment in either
this life or the next;19 and every law which he calls purely penal
seems to oblige tacitly under venial or mortal sin, on account of
which sin the penalty is imposed. In spite of that statement,
which would seem almost to deny the possibility of a merely
18. Summa Theologia Moralis, Vol. I, no. 287.
19. Cf. Commentarii de Lege Poenalis, no. 41.

,· -

J

penal law as far as Navarrus was concerned, he in his own tract
on law speaks of Sylvester’s writing against Henry of Ghent,
Angelus a Clavasio, and Castro; and then without any effort to
develop an explanation he says: "A temporal punishment which
does not suppose an eternal punishment excludes it.” He grants
that an excommunication implies a moral fault, but he gives no
other reason for rejecting the moral force of ordinary civil laws
than the will of the legislator.20
The next author to contribute something new to the question
was Suarez, who also defined a penal law according to its
verbal form.21 He said that a purely penal law is one which con­
tains only one precept and that is a hypothetical precept of ac­
cepting a certain penalty if this or that occurs. The difference
between Suarez and Castro can be perceived readily if we place
alongside that definition what Suarez said in his answer to the
solution Navarrus offered. “A law containing a precept obliges
in conscience.”22 In other words, for Suarez, precept and obliga­
tion are correlative terms and a precept always gives rise to an
obligation and an obligation is always the product of a precept.
This explanation which Suarez presented seems to have had some
effect; for, as a matter of fact, many authors— indeed, most of
them who followed Suarez — used the word "obligation” in
defining a penal law, whereas those who preceded him did not
use the word "obligation.”
Billuart,23 and the others he refers to, claimed to be against
the idea of taking the obligation of obeying a law from the
wording of the law, but actually they did not stray very far away
from it. Billuart himself divided law according to its obligation
into three classes and then proceeded to subdivide mixed penal
20. Navarrus, Manuale Confessarjorum
c. xvii, p. 395.
21. Tractatus de Legibus, V, c. iv, no. 2.
22. Ibid,, V, c. iii, no. 6.
23. De Legibus, Dissert. IV, art 4.

et

Poenitentium (Venice 1428)
’

i

laws into two classes. The first kind is copulative, as though
the law read, "Let no one export grain from the province and let
him who exports it pay a fine,” which can be expressed in a
single proposition in this manner. "We forbid anyone to export
grain from the province under the penalty of paying a fine.” The
second class of penal laws is disjunctive,24 as though the law
read, "Let no one export grain from the province; or if he does
export it, let him pay a fine.” After giving that division of a
mixed law, Billuart says: "I hold as certain that a mixed copula­
tive law obliges the subject under pain of sin to place or omit
the act because it truly prescribes or forbids; and the penalty is
not placed that it might take away the obligation but rather that
it might strengthen it and more efficaciously move to the observ­
ance of it.” Then he proceeds to state that it is also certain that
the disjunctive law does not oblige definitely either to the act
or the penalty, but rather to one or the other. The only reason
he could have had for not applying the same criterion to the
disjunctive as he did the conjunctive, was that old doctrine which
dictated that a law obliges according to the way it is written.
Billuart was mainly concerned with what he defined as a
penal law: namely, ’’one that imposes a penalty on those who do
or omit something, but without explicitly, at least, prescribing or
forbidding anything.” As if it said, he who takes grain out of
the province, shall pay ”a hundred.” The question is whether it
obliges one sub culpa to place or omit the act or only to undergo
the penalty. Each part can be defended. Billuart claims that
such a law binds per se both as to the act and the penalty. The
reason is that, according to the common understanding and the
common way of speaking, whoever says, ”He that does this shall
be condemned to death,” is really saying: "I forbid this to be
24. Thus Van Hove was mistaken when he wrote that the disjunctive obligation
theory is of nineteenth-century origin. Cf. Van Hove, De Legibus Ecclesiasticis,
no. 150.

ry

*:

done, and whoever does it will be condemned to death.” Hence,
even though he does not explicitly prohibit or prescribe, he does
this implicitly.
From the above statements which Billuart makes, it would
seem that he stood firmly against the whole theory of penal laws
as it is generally accepted today. The fact that he asks the ques­
tion whether or not a penal law binds in conscience, shows how
far he is from the modern concept of penal laws. Today we ask
w'hether or not they’ exist. I say at first glance; because, a little
further on in the same article, Billuart says that he used the quali­
fying words "per se' because it may happen, as in the Dominican
Constitutions, from the mind of the legislator or the custom of
the people, that a penal law’ w’ould bind only ad poenam. Thus
w'e see that he was not really too far from the mind of those who
sponsor the penal law theory today.

40

Chapter IV
PENAL LAW AMONG MODERN AUTHORS

I. THE DIFFERENT THEORIES

ESPITE the fact that theologians now reject the theory of
penal laws in the sense in which Angelus, Henry of Ghent,
and Castro considered them, there is a great lack of harmony
among theologians in explaining the theory and there are three
major schools of thought regarding the precise nature of a penal
law; also, many lesser opinions have been offered. The first is
what might be called the theory of the moral disjunctive obliga­
tion.1 It is a throwback to the moral disjunctive law which
Billuart spoke of. The patrons of this theory maintain that a
purely penal law obliges either to the act which the law pre­
scribes or to the fulfillment of the penalty, but not definitely and
determinately to the one or the other. The subjects remain free
to choose one or the other of the alternatives.
The second theory is called a conditional moral obligation.
According to its patrons, a penal law gives rise to a purely
juridical obligation in regard to the act prescribed or prohibited

D

1. D’Annibale, a patron of this theory, wrote: "Lex poenalis ea dicitur quae
poenam irrogat transgressori ideo duo semper continet nempe rem aliquam (non
faciendam vel faciendam) et poenam, itaque obligat pure poenalis vel ad rem vel
ad poenam arbitrio nostro.” — Summula Theologiae Moralis (Rome, 1908),
Pars I, no. 207.
Bouquillon also defends it: "Si stricte loqui velimus repugnat ut detur vero
lex pure poenalis non tamen repugnat ut detur lex mere poenalis minus stricte
quae scilicet disjuntive tantum obliget vel ad actum ponendum vel saltem ad onus
subeundum. — Theologia Moralis Fundamentalis (Bruges, 1903), no. 144,
p. 353.
Among others who favor the disjunctive theory are Maroto, Institutiones
Juris Canonici (Rome, 1921), Tom. I, no. 189; Tepe, Institutiones Theolo­
gicae Moralis, I, 365; Lehmkuhl, Theologia Moralis (Freiburg im B., 1914),
I, 310; Reuter, Theologia Moralis, Tom. I, no. 214; and Ferreres, Compendium
Theologiae Moralis (Barcelona, 1925), Tom. I, no. 205, who calls this the most
common opinion.

41

directly, immediately, and relatively. If this obligation is not
fulfilled from the law itself, a moral obligation arises either to
pay the penalty, if it is a "latae sententiaeor to sustain it when
it has been imposed. Priimmer, a defender of this theory, says
that a purely penal law is one which indeed truly prescribes
something to be done or omitted and threatens a penalty to the
transgressors. Only a juridical fault is established and is punished
by such a transgression.23
The third theory is known as the purely juridical obligation.
Vermeersch* sponsored it. According to his theory, a purely
penal law causes no obligation in conscience whatsoever of its
own power, neither when it imposes a punishment nor w'hen it
prescribes an act or an omission. A penal law has only a purely
juridical force in the external forum, obliging indeed principally
to the thing and merely conditionally to the penalty, if the pre­
scribed act has not been observed. Nevertheless, there arises a
moral obligation of sustaining the penalty, not from the penal
law itself, but from the natural law which commands us not to
resist public authorities when they demand payment of a debt
contracted in their forum.4
Rodrigo5 perceives the inherent weakness of the three major
theories. Still he refuses to abandon the purely penal theory;
instead, he purposes what he freely ad its is an eclectic opinion,
which, he says, eliminates the disjunctive obligation theory,
amends the juridical, and perfects the conditional theory. It is
2. Manuale Theologiae Moralis (Barcelona, 1946), Vol. I, no. 209;
Suirez, Tractatus de Legibus, I, v, c. 4, no. 4; Janssen, "De Lege Mere Poenali,’’
Jus Pontificum, Vol. IV (Rome, 1924), pp. 119-126; Van Hove, op. cit., no. 150.
3. Theologia Moralis (Rome, 1933), Vol. I, no. 172; "Lex mere poenalis
nobis concipienda videtur ut lex quae tota quanta conscientiam non obligat; seu
quae ut ait S. Alphonsus (Theologia Moralis, "De Legibus,” no. 145) 'non
obligat in conscientia,’ i. e., quae tota quanta se continet in ordine juridico seu fori
exterioris.”
4. Cf. Rodrigo, op. cit., Vol. II, no. 340, and Lopez, "Theoria Legis Mere
Poenalis,” Periodica de Re Morali Canonica Liturgica, Vol. XXVII (1938),
Fast. Ill, ρ. 207, for an analysis of the Vermeersch view on this point.
5. Praelectiones, Vol. II, no. 346.

42

'/■

pt

IL

-

quite a difficult task that he purposed for himself, and he does
not seem to succeed in accomplishing it. His eclectic opinion
leaves much to be desired. He distinguished a twofold obligation:
One terminates in the act intended by the lawgiver; this is the
principal obligation. Nevertheless, it does not bind in con­
science — at least not from the force of the law itself. Otherwise,
it would not be distinguished from a mixed penal law. The other
is a subsidiary obligation, terminated in bringing forth a due
punishment as a sanction of the principal obligation. The prin­
cipal obligation is purely juridical. The subsidiary may at the
choice of the lawmaker be either purely juridical or moral. There
always remains in the superior the clear right of demanding a
punishment in the internal forum to which corresponds the debt
of sustaining it also in the internal forum. And this obligation
in conscience is caused by the penal law itself.
To this list we may add the theory of dispensability pro­
posed by Woroniecki,6 who admits with Renard that just as heat
which does not heat, is not heat; and light which does not light,
is not light; so a law which does not bind is not a law. Woroniecki
says, however, that a law binds proportionately according to the
gravity of the matter prescribed for the common good, and then
goes on to say that a penal law obliges indeed in conscience to
such an act as the law prescribes, but in matters of light moment
in social laws subjects can dispense themselves if they judge that
it is fitting and useful for them to do so. The burden remains,
nevertheless, of undergoing the penalty when it is imposed by the
civil magistrates.
Then, too, there are still a few moralists who contend that a
penal law can be judged from its form — that is, according to
the way in which it is written.

6. "De legis sic dictae poenalis obligatione,” Angelicum, Vol. XVIII (1941),

IL CRITICAL ANALYSIS OF MODERN THEORIES
Ever}’ theory proposed in support of purely penal laws pos­
sesses a glaring weakness that even a passing consideration
demonstrates. None of the systems proposed in defense of the
merely penal obligation can be reconciled with Saint Thomas
classical definition of law. The theory of the disjunctive obligation supposes a purely penal law to have two alternatives, which
are proposed as equal principles. The subject has his choice: He
can fulfill the law or suffer the consequences. This theory must
be rejected, as it is completely illogical. The penalty is only a
sanction attached to the law. It is not contained in the primary
end toward which the law aims. The acceptance of the punish­
ment inflicted is not the observance of the law. Rather, it is a
sign that the subject did not obey the law. In imposing a punish­
ment, the magistrate simply forces those guilty of disturbing
peace and order to pay for the disturbance that they have caused.

The disjunctive theory also strikes a discordant note from
another angle. A just law can prescribe only something which is
absolutely or at least relatively necessary in order to obtain a due
end which the common good demands. If the end of the law is
not necessary, the legislator, unreasonably restricting the freedom
of those under his jurisdiction, enacts not a true law but performs
only an act of tyranny. If the end of the law is necessary, the
legislator would be guilty of negligence if he held himself in­
different as to whether the law was observed or the sanction
enforced.
In every penal statute, therefore, the principal intention of
the law does not consider the penalty; for this would be tyranny
and cruelty; but it considers the observance of some work of virtue
and legal custom to which it joins a punishment, that it may

bind the subject more strongly to the observance of the law lest
it be transgressed through disobedience.7
The theory of the conditional obligation, according to which
the subjects are morally and determinatively obliged to the
threatened penalty,8 does not give a valid reason for imposing a
penalty upon a person who placed an act that was not in itself
morally wrong. If this theory were true, it is difficult to see how
the punishment could be justly inflicted. According to Saint
Thomas,9 a penalty is that which is contrary to the will, is afflic­
tive, and is imposed on account of a culpa. The penalty must
always have a relation to the culpa and must be in proportion to
it. Either the act was evil, or it was not. If it was evil, the penalty
should be imposed. If it was not evil, there is no reason why
anyone should feel bound in conscience to undergo a punishment,
except to avoid scandal or personal injury.
Like all exponents of the penal law theory, the sponsors1011
of
the conditional obligation system seek refuge in the so-called
juridical fault that does not go beyond the external forum, but
which they twist out of all proportion to its true nature in order
to defend their position. (This question will be taken up in its
proper place.) The main point on which our attention must be
focused is this: Either a man turned against a reasonable com­
mand in disobeying a penal law, or he did not. If he did, his act
was evil before both God and man and deserves censure. If he
did not act against reason, to punish him is not just.11
It is not possible to take a human act out of the forum of God,
that is, the internal forum; otherwise, it would follow that God
does not have charge of human acts: an evidently false supposi­
tion.12 Then, too, human acts in concreto are either evil or good.
7.
8.
9.
10.
11.
12.

Henry of Ghent, Aurea Quodlibeta, III, q. 22.
Rodrigo, op. cit., Vol. II, no. 343.
Summa Theol., la Ilae, q. 46, a.6 ad 2.
Cf. Priimmer, Manuale Theologiae Moralis, Vol. I, no. 209.
Summa Theol., la Ilae, q. 21, a. 2.
Ibid., q. 21, a. 4.

45

T* J •■•V» iSLl

They are never indifferent. In the conditional obligation theory it
seems that an act could be considered evil and good at the same
time. The action contrary to the law is good in so far as it is not
considered morally wrong, but it is also evil in so far as the civil
au±orities can punish anyone who goes contrary to the law. It
seems, according to the conditional theory, that I am not bound
morally to obey a penal law. Yet if I disobey it, the common
good is injured to such an extent that I must repair the damage,
and this obligation binds me in conscience. Surely, if the harm
inflicted on the general welfare was so great that I am morally
bound to make amends, then the act by which the injury was
caused cannot be free of moral guilt. Actually there is not any
real distinction between the disjunctive and ±e conditional theory,
in so far as even according to the latter system there is nothing
to prevent an individual from breaking a so-called penal law
and accepting the consequences, while at the same time feeling
that he was acting entirely within the moral law.
Vermeersch rightly rejected the disjunctive theory and saw the
fallacy in the conditional theory. He attacked them in these
words: "We say that the will of the legislator is astonishing and
not too suitable which denies the force of obliging to a principal
part of the law — i. e., the norms — so that it makes this power
of obligation belong to the secondary part, which is the exterior
sanction.”15 Although that statement seems an outright rejection
of any theory which would relegate the principal effect of law to
a secondary position and elevate the exterior sanction above its
rightful position, his own system, the purely juridical theory, con­
tains the same unsound line of argumentation. According to his
explanation, the superior retains legitimate authority, and there­
fore, a penalty imposed for a purely juridical fault is legitimate
I

13. ’’Miram et parum congruam dixerimus voluntatem legislatoris qui parti
principali legis, i. e., normae negaret vim obligandi ut hanc propriam faceret partis
secundariae quae est sanctio exterior.”—Theologia Moralis, Vol. I, no. 172.

46

1· »

*ΑΦ·Α

.-v

and it is not possible to resist the authority inflicting it. This,
however, he adds, is not by force of human laws, but of the divine
law which imposes obedience to just laws.14
One may ask, does the divine law demand only non-resistance
to an exterior sanction or does it also include the thing itself
which a lawful authority commands or forbids? It seems that in
the purely juridical theory all human authority is reduced to the
power of uttering threats of punishment. It seems to deny, at
least implicitly, that men must respect authority and obey reason­
able commands. It seems to presume that men can be moved
only by the fear of penalties.
Regardless of any explanation that might be given in this
concept of penal laws, men would not be bound beyond the
external forum. Legislators who receive their power to rule
from God and who act in the name of God cannot place such a
limitation upon their commands. They have no authority and
cannot exercise any authority unless they act as ministers of God
for temporal things. By right and in practice, all authority comes
from God. In fact and in practice, the established civil power
is from God. Furthermore, the power is exercised in the name of
God and must necessarily terminate in God. The ministers of
God for temporal things cannot proclaim a law which terminates
in themselves and not in God. They have no authority to do so.
They are only secondary causes of the laws they promulgate.
All laws depend upon God as the primary cause. Just as the
effects of a secondary cause are wholly dependent upon the pri­
mary cause, so too the effects of laws established by a minister
of God obtain their entire force from God Himself, whose
ordinances always oblige in conscience.
If a purely juridical obligation were possible, if individuals
were not bound in conscience to obey a just law, fear would be
the only motive urging the observance of law. Fear, however,
14. Theologia Moralis, Vol. I, no. 172.

47

a * ·. .
rvSu ..S

’ Ritas'

is entirely too weak a foundation for the promotion of the gen­
eral welfare. As Saint Thomas said, "Fear is a weak foundation;
for those who are subdued by fear would, should an occasion
arise in which they might hope for immunity, rise more eagerly
against their rulers in proportion to the previous extent of their
restraint through fear. 15
Pope Leo XIII, speaking about rulers who do not recognize
nor attribute their right of ruling to God, made a statement
which is an implicit attack on the whole theory of penal laws:
... Rulers in the midst of such threatening dangers have no remedy
sufficient to restore discipline and tranquillity. They supply themselves
with the power of laws and think to coerce by the severity of their
punishments those who disturb their governments. They are right to
a certain extent, but they should seriously consider that no power of
punishment can be so great that it alone can preserve the State. For
fear, as Saint Thomas admirably teaches, "is a weak foundation"; for,
"those who are subdued by fear would, should an occasion arise in
which they might hope for immunity, rise more eagerly against their
rulers in proportion to the previous extent of their restraint through
fear.”
And besides "from too great fear many fall into despair, and despair
drives men to attempt boldly to gain what they desire.” That these
things are so we see from experience. It is therefore necessary to seek
a higher and more reliable reason for obedience and to say explicitly
that legal severity cannot be efficacious unless men are led on by duty
and moved by the salutary fear of God.16

The compromise theory which Rodrigo offers as a solution
must be rejected, as is evident from what we have said above in
refuting the conditional and the merely juridical theory. In ad­
dition, it must be said that in Rodrigo’s theory the nature of the
subsidiary obligation would have to be mentioned in the law, but
15. De Regimine Principum, 1, 10.
16. Encyclical Diuturnum (1881), sec. 18.

48

legislators are not accustomed to discuss the nature of the penalty
in the wording of the law. He calls the exterior sanction the
subsidiary obligation and the act or omission the principal obliga­
tion. Since, however, the acceptation of the penalty obliges
morally and the act or omission obliges only in the exterior or
juridical forum, the payment of the penalty must be called the
principal obligation in his theory. It has power in two forums,
while the act or omission is restricted to the civil forum. Like
all other theories supporting purely penal laws, this one snatches
away from the civil magistrates the dignity which Sacred Scripture
attributes to them and leaves them only the power to punish
evildoers.

As for the theory of dispensability which Woroniecki pro­
poses, it, too, must be rejected. Although it is a very clever
attempt to solve the problem, it does not seem to be in accord
with the mind of the legislators. A dispensation is an act of
jurisdiction which subjects do not possess. The faculty of dis­
pensing oneself requires an expressed concession from the superior
either formally or equivalently. Penal laws do not possess such
an acquiescence on the part of the superior. At least no one can
prove it exists in any civil statute.
Certainly any attempt to consider a law as merely penal from
its form is obsolete. It is irrelevant.17 The form of every im­
portant law in our time is penal in the sense that a penalty is
imposed for its violation. In fact, a civil statute which carries
no penalty is not now regarded as a law at all. It is merely a
directive rule, a more or less persuasive ideal or a civil counsel
of perfection. From the form of a law it is almost impossible to
draw any reference concerning the extent or restriction of its
morally binding character.
17 Cf. John A. Ryan, "Are Our Prohibition Laws Purely Penal?" Ecclesiasti­
cal Review, Vol. LXX (1924), p. 408.

A very7 practical difficulty, a commonplace fact, rules out
any possibility of judging the binding force of a law from its
form. How many people are there who ever actually read a law
in its official form? Safely, it can be said that only lawyers,
public officials, and those connected with court cases ever read
a law in its official form. The rest of us receive our knowledge
of the existence of a law from a resume given in the newspaper
or in some journal or other which does not discuss the moral
issue involved at all. If the above principle were a valid method
by which to judge the moral obligation of a law, how would the
average man, who has not seen or heard the form of the law,
know the gravity of his obligations connected with laws that
directly or indirectly affect him?

Chapter V
AN ANALYSIS OF THE INTRINSIC ARGUMENTS
UPON WHICH THE PENAL LAW THEORY IS BASED
I. CUSTOM AND THE PENAL LAW THEORY

N DEFENSE of the merely penal law theory, it has been said
that a custom exists in a community according to which the
people consider certain civil laws of minor moment as merely
penal. An appreciation of elements required to form a custom
betrays immediately the weakness of the custom argument. Custom
may be taken either formally or materially. In the material sense
it simply means a series of like acts or omissions over a long period
of time. For instance, antiquated blue laws in Pennsylvania which
have not been observed for over a century, at least. Such a case
constitutes a material custom or material for a custom. In order,
however, for a material custom to become a formal custom — that
is, in order that it may be a correct norm of action — the legislator
must give his approval either implicitly or explicitly.1 The dif­
ficulty in accepting this argument lies in the fact that legislators
never declare in any manner that certain laws are merely penal.
And unless such consent is given, an ordinance of reason pro­
mulgated for the common good by one in authority obliges
morally.

I

II. THE COMMON ESTIMATION AND PENAL LAWS

Other advocates of the purely penal theory say that it is not
necessary to have a custom, strictly speaking. The common per­
suasion of the faithful, the common estimation, the common inter­
pretation of the more intelligent, the more timorous, the more
1. Michiels, op. cit., II, 4-6; Cicognani, op. cit., pp. 643-647.

51

conscientious citizens, is sufficient to demonstrate the existence
of laws that do not bind in conscience. No weight can be at­
tached to this argument either, for the simple reason that the only
weight attached to the common estimation of a law is that which
it may possess as interpreting the mind of the legislator. Popular
estimation is not an authentic interpreter of the law except to the
extent that it is either tacitly or expressly accepted by the legislator.
The only authority the common persuasion contains is that which
it may possess as an interpretation of the ruler's mind. There is,
however, nothing either in the nature of our civil lawrs or in any
known attitude which indicates a legislative intention to make
enactments merely penal.
The common persuasion-argument is a mere presumption
which cannot be actually demonstrated. It would be difficult to
find an individual who considers himself obliged in conscience to
suffer punishment for doing something contrary to the laws of his
country which in itself was not morally wrong. Generally speak­
ing, he undergoes the penalty inflicted for such an offense only
for fear of a greater injury. For example, a man arrested for
speeding pays the fine, not because he thinks it is a sin, but rather
because he knows that if he does not pay the fine he will lose
his driver’s license. The ordinary layman would reject the penal
law theory as too subtle a distinction to understand or to be
bothered with.
The common ordinary man usually submits to civil reprisals
for sinless acts, not because he feels he ought to, but simply out
of fear. We have to take into consideration also the evident fact
that many people do not realize their obligation in regard to
just civil laws. Consequently, they often disobey certain laws
that cause them some inconvenience which they consider an in­
fringement upon their liberty. If they are arrested and taken to
court, they pay their fine in order to avoid any further annoyance.

Tr/r* *

• >- ■· .■

Rarely do they stop and consider any moral obligation connected
with their action or the penalty they undergo.
It does not seem that the common estimation-argument, as
used by the defenders of the penal law theory, can withstand a
logical, practical investigation. It seems instead to count against
them rather than add any strength to their position. It is at least
of very little or of doubtful value in an attempt to prove the
existence of merely penal laws which do not bind ad culpam.

III. THE GREATER AND THE LESSER ARGUMENT
There is an axiom which says: He who can do the greater
c-an do the lesser. Applying that to the power of a legislator,
our opponents2 claim that since it is a greater thing to bind
citizens to both the act and the penalty rather than to bind to
the penalty alone, the legislator, therefore, who can bind to both
the act and the penalty can also bind to the penalty alone. That
axiom in itself is valid, but has no place here and cannot be
applied to the formation of laws.3 The axiom that he who can
do the greater can do the lesser, is valid only in case the effect
is divisible. For example, a pane of glass two yards square can
be divided into small squares, and he who made the large pane
of glass, can also divide it into small pieces or make new, smaller
squares. It is also evident that the area of both sides of a pane
of glass is greater than one side, but it is clear that no one can
manufacture a pane of glass with only one side. Glass is not
divisible in that manner. In like manner, magistrates can establish
laws that are absolutely or only relatively necessary, that carry
a light or a grave obligation, but they cannot establish a just
and a true law which would not contain a moral obligation. It is
a necessary property flowing from the very essence of law.
2 Prümmer, op. cil.t Vol. I, no. 210.
’ Crowe, The Moral Obligation of Paying Just Taxes, p. 103.

The legislator has the power to determine whether or not a
certain action should be commanded or forbidden. He also has the
power of adding sanctions to his commands. In one sense the leg­
islators can do the greater or the lesser. Since a law does not pre­
suppose a sanction, they can promulgate one with a sanction or
without one. They cannot, however, change the essence of a
law. They cannot limit its binding force to the external forum.
Law, in its nature, is a rule for the measurement of human acts.
There is no such thing as a human act which does not pertain to
the internal forum. We are responsible to God for all our
deliberate acts. A promulgated law immediately becomes a rule
whereby the goodness or malice of human acts is measured.
Those acts which conform to it are good; those which do not
are evil.

IV. THE MERELY JURIDICAL FAULT

A juridical fault is that by which anyone transgresses a pre­
cept of the civil law whether he does or does not offend God
through a formal sin. He who transgresses a civil law by a
formal sin is guilty of a theological as well as a juridical fault.
A merely juridical fault is had when anyone is reputed to have
violated a civil law, although he does not offend God through
a formal sin — as, for example, he who places an illegal act
because of forgetfulness or inadvertence.4
The violation of every civil law, whether we call it a purely
moral, a mixed, or a merely penal law, always induces a juridical
responsibility. That is an obligation of answering to society for
all the consequences which follow the breaking of a law. The
juridical guilt incurred, as far as the civil authorities are con­
cerned, is always the same. The magistrate simply demands that
4. Heylen, De Jure

et

Justitia (Malines, 1943), II, 483.

those who damage the social external order must make reparations. The civil judges make no attempt to — indeed they are
not competent to — pass judgment upon the interior dispositions
that accompanied the offense committed. The law presumes that
the will conforms to the deed unless the contrary is proved. Even
when the contrary is proved beyond a doubt, the State still has the
right to demand reparations, especially if the rights of a third
party are involved. In case a person was not voluntarily respon­
sible for his action, he certainly would not be held guilty in the
forum of conscience for his act. Nevertheless, the judge can
oblige him in conscience to pay the damages. There are two
reasons for this. First, he cannot know the nature of the interior
act. He can only pass judgment upon the anti-social exterior
act. Secondly, the common good demands that law should lead
all men to discharge their duties carefully, not to act inadvertently
in matters that involve the public good. This power in the hands
of the civil authorities forces citizens to a greater respect for the
individual and property rights of another.

I

I

I

I

We can conclude, then, that although a man will not have to
answer in the forum of conscience for an involuntary act, he may
be bound in conscience to make restitution for the injury that
resulted from the indeliberate act. This is a case in which a
punishment is justly inflicted even though no moral guilt was
incurred. No one can deny that this is just and right. To speak,
however, of a purely juridical fault in which a just law was
willingly and knowingly transgressed seems absurd, but that is
what the defenders of the penal law theory would have us believe.
It is not acceptable. Every theory proposed to defend the purely
penal laws ultimately rests upon the false assumption that a
purely juridical fault can exist even though the disobedience

was voluntary.

...

6

V. THE WILL OF THE LEGISLATOR
Authors of the past such as Castro, Angelus a Clavasio, Henry
of Ghent, and Navarrus, as well as modern writers such as
Marc, Noldin, Prümmer, and Génicot, attribute to the legislators
the power of restricting the moral obligation to the penalty.
The obligations attached to a law, they say, ultimately depend
upon the will of the legislator. If he does not intend to bind
the conscience of his subjects to the act but only to the accept­
ance of the penalty, that is the only obligation connected with
the law.
In view of the fact that all law is a participation in the
eternal law and that the legislator is only a minister of God and
not an independent authority, civil magistrates have no power to
place such a restriction on a law. Law depends upon the will of
the legislator for its existence, but not for its essence. A law
would not exist unless those in authority had established it;
that is true. The essence, however, is something eternal, some
participation in the eternal law of God which is the first and
highest rule. As Saint Robert Bellarmine says, "Once a legislator
establishes a true law, it is not in his power to limit its obligation,
but it will be mortal or venial according to the magnitude of
the matter.”5
Furthermore, no one who advocates "the-will-of-the-legislator
argument” can point to a single instance in which a civil authority
ever declared that he did not intend this or that law to bind in
conscience. When writers come to this question, they always
appeal to the constitutions of religious orders as an example of
laws that bind only ad poenam. The comparison is not ad rem.
A religious order is not a civil society. It is not a natural society.
(More on this point later in the chapter.) It is often said, as
5. De Controversiis, Tom. II, i. 3, "De Laicis,” c. 11 ad 6.

· (u·1 *'

though it were true, that custom laws are merely penal, but no
one can point to a single nation in which the legislators have
declared that they wish the custom regulations to bind only to
the penalty when the violator is caught.
If it could be admitted that the obligation in conscience to
the act or omission commanded were an impedible property
of law, it must be confessed that no civil magistrate has ever
made any attempt to impede this obligation, which flows from
the very essence of law. The vast majority of civil authorities
are always glad to seize any additional means to enforce their
laws. Even modern dictators are quick to remind their Christian
subjects that their religion commands obedience to the laws of
the State.

-4

VI. MODERN LEGISLATORS
AND THE MERELY PENAL LAW THEORY
In regard to this question the observations made by Ulpianus
Lopez6 cannot be passed over lightly. He contends that even
if merely penal laws were possible, which he does not admit,
they do not exist today. In proof of his assertion he claims that
the major condition necessary for the existence of a penal law
is nowhere to be found among modern legislators: namely, the
will to prescind the moral obligation to the act or omission com­
manded. Most of the classical authors of the past and present
demand this as a condition. Lopez quotes Castro, Suarez and Soto
to prove his thesis. He could have easily quoted dozens of others.
Even Hurth-Abelian says, “It can be asserted freely as intrinsic
to the very notion of a law that it binds immediately to the

6. "Theoria Legis Mere Poenalis,” Periodica de Re Morali Canonica Liturgica, Vol. XXVII (1938), Fasc. Ill, pp. 2O3sqq.

r

*1

·

*

·

thing; and therefore law demands a positive act of the legislator
by which he restricts this natural efficacy of the law.”7
Lopez bases his case on the following arguments:

1. Laws today are not written disjunctively.
2. Lawmakers do not even consider conscience, far less dis­
pense from the obligation inherent in law.
3. Lawmakers are silent about the moral obligation both in
light and in grave matters.
4. Therefore, the only thing to do is have recourse to the
patristic interpretation of Saint Paul, from which font Saint
Thomas formed his golden principle in which the fundamental
norm is contained: "Laws formed by men are either just or un­
just. If they be just, they have the power of binding from the
eternal law whence they are derived, according to Proverbs, Chap­
ter 8, verse 15: 'By Me kings reign and establish justice.”78
VII. THE SUFFICIENCY OF THE PENALTY

Michiels,9 Merkelbach,10 and many others say that in a merely
penal law the punishment is a medium through which the legis­
lator efficaciously intends to bind the subjects to do that
which is established by law. It is of no value to say that a law
will be penal if the lawmakers judge that the threat of punish­
ment is sufficient to enable magistrates to achieve their end. The
act prescribed or forbidden by law must in some way be neces­
sary, either for the maintenance or the promotion of the general
welfare. There is a necessary end which requires the placing of
or the omission of a certain act. In other words, the act has
7. De Principiis, de Virtutibus, et de Praeceptis (Rome, 1948), Pars I,
no. 248.
8. Summa Theol., la Ilae, q. 96, a. 4.
9. Normae Generales, I, 310.
10. Summa Theologiae Moralis, I, 172.

58

J

an intrinsic morality before the legislator decides upon the means
to enforce it. If he thinks that a sanction is necessary, he pre­
scribes one. If the act itself has no relation to morality, if the
common good in no way demands it, then the infliction of a
punishment for a contrary action is mere violence and nothing
more. If the common good demands it and if the legislator pro­
mulgates the law, it is sinful to disobey in proportion to the
gravity of the matter involved.11
We must always keep in mind that the physical sanctions
used in enforcing law and justice have some connection with the
obedience that is due civil authority, but this physical force is
not the essential characteristic of the law, as has been taught since
Kant’s time. The physical penalties are merely the means the
State may use in enforcing the law.11
12 A law can exist without
the sanction; it does not presuppose it. It is a means of creating
fear, the weakest motive for obedience. It is a secondary and
additional means. It is external to the law itself. No matter
how the patrons of the purely penal theory try to avoid it, the
fact remains that in their theory the payment of a penalty, the
undergoing of the punishment, would occupy the primary posi­
tion, for it alone binds morally; it alone carries a real obligation
before the throne of God.
Davis,13 Lojano,14 and others claim that when the State
exercises considerable vigilance, inflicts heavy fines, and imposes
severe direct punishments, etc., the obligations are merely penal,
because by that method alone the legislator hopes to achieve
his end. That does not seem to be the only nor the most logical
11. Cf. Litt, "Les Lois Dites Purement Pénales.” Revue Ecclesiastique de
Liege, Tom. XXX (1938-1939), pp. 141fF. Cf. also Brisbois, "Les Lois Pénales,"
Nouvelle Revue Theologique (1938), p. 1072.
12. Cf. Hans Meyers, The Philosophy of St. Thomas (St. Louis, 1948),
p. 503.
13. Moral and Pastoral Theology, (Nev.- York, 1946), II, 339.
14. Institutiones Theologiae Moralis (Paris, 1927), Vol. I, Theologia
Moralis, p. 130.

«few
•’V

conclusion to draw from the fact that there are severe sanctions
attached to a law. The excessive weight of the penalty may mean
that the authorities consider the law of great importance. The
vigilance exercised may simply indicate that the magistrates do
not trust the good will of their subjects in that particular regard.
It might be they consider that the temptations to violate a certain
law are so unusually alluring that they must be counteracted
with threats of severe punishments.
To say that the rulers are satisfied with the exactions of
penalties from the offenders is a pure assumption without suf­
ficient foundation. There is no evidence that the legislators are
thus satisfied. Generally they are willing and eager that enact­
ments shall have all the efficacy that their authority can give
to a law.

VIII. A VARIATION

There are very few authors who are content with the usual
arguments offered in defense of penal laws. They manage in
one way or another to add something of their own to strengthen
their position. There seems to be a note of uncertainty among
writers which casts at least a shadow of doubt upon the value
of their arguments for the defense of merely penal laws. How­
ever, when their position is examined carefully, it becomes clear
that they really do not depart too far from the beaten path.
For instance, Hurth-Abelian15 speaks of man’s being moved
to act not only by moral laws, but also by psychological laws. In
his explanation of what he means by moving a man psycho­
logically, it is evident that he means that a man is moved
psychologically by the threat of a punishment, by fear of reprisal.
That is very true, but it is moving man by a form of tyranny,

not by an ordinance of reason, which imposes a duty upon him.
It is not moving man by law.
Some may suggest that the law moves a person psychologically
in the ordinary sense of the term. In the common use of the
term, moving people psychologically means to persuade men to
act in such a manner that they feel as though the idea of doing
this or that originated within themselves without external com­
pulsion from any source. There is nothing to prevent civil au­
thority from acting in that manner. Clever rulers have made
abundant use of that method from the beginning of time, but
that could not be considered as moving citizens to act by civil
law. It would not consist of a promulgated ordinance for the
common good. It would have more of the nature of a counsel or
wish, or an admonition.
IX. THE RULES AND CONSTITUTIONS
OF RELIGIOUS ORDERS
When all the other motives for retaining the purely penal
law theory have been rejected, the defenders of it are sure to
ask: "What about the rules and constitutions of religious orders?
They are true laws, and in the constitutions of many communities
it is specifically stated that they do not bind in conscience except
as regards fulfilling the penance when it is imposed.” We do
not deny that the rules and constitutions of religious communi­
ties bind morally only as regards the penalty, if that is stated in
the constitutions. This fact, admitted by all, presents no valid
objection to our thesis. The obligations flowing from civil law
and laws in a religious order are not parallel. There is no founda­
tion for an apt comparison between the two types of communities
and their laws. They are radically different. A religious commu­
nity is not a necessary society, but one of convenience. Religious

15. De Principiis (Rome, 1948), Vol. I, nos. 245-250.

60

61

orders are very beneficial both to the Church and to their indi­
vidual members. They greatly assist the Church in working for
the salvation of souls and in assisting the individual religious to
attain sanctity, but they always remain a positive, particular
society. Whereas, on the other hand, civil society is a necessary
and essential organization for the full realization and well-being
of man, who is a social animal by nature. It is a natural society.
The root of the obligations for a religious is the nature of the
contract he made when he pronounced his vows. The root of
civic obligations is man's sociality. The final aim of each religious
order is perfection through love of God. The end of civil society
is to create peace among men and to promote their general wel­
fare so that they’ can work out their owrn individual perfection.
Since the rules of religious orders seek to lead the religious to a
greater love for God, they bind in charity.16 Civil laws bind in
justice, according to what Saint Thomas said in answer to the
question of whether or not Christians are held to obey secular
powers: "The order of justice requires that subjects obey their
superiors, for otherwise it would not be possible to conserve the
order of human affairs."17
Since men freely form or enter a religious cor Illi unity, with
the approval of the Church, they can determine the binding
force of the obligations they will assume. They can limit the
moral obligation to the acceptance of the penance. Those rules
will be laws only in the wide sense of the term, not in the strict
sense of the word. The natural law, however, leads men to form
civil societies.18 Man cannot determine the nature of the obliga­
tions he will assume. They are determined by the natural law,
16. Cf. Cajetan, Commentaria, Ila Ilae, q. 186, a. 9; Lopez, "Theoria Legis
Mere Poenalis," Periodica de Re Morali Canonica Liturgica Vol XXVII
(1938), pp. 203-216; Vol. XXIX (1940), pp. 23-33.
17. Summa Theol., Ila Ilae, q. 104, a. 6.
18. Cronin, op. cil., II, 471.

of which the civil laws are particularized determinations or appli­
cations. All civil laws can be traced back to the natural law.19
Otherwise the result is neither natural law nor human law. The
civil law holds itself as a secondary cause depending upon the
natural law as a primary cause. Secondary causes have the same
ultimate effects as the primary cause, but the natural law binds in
conscience. Therefore, so does every true civil law. Plainly,
then, it must be admitted that man has no power to determine
the extent of the fundamental obligations he will assume in civil
society. They are beyond his control in the very nature of things.
Robert Bellarmine20 considered the question: “If law by its
very essence binds to the act, in what manner, therefore, do the
rules of certain religious orders oblige only to the penalty?” He
responded, “They oblige not through the manner of laws, but
through the manner of contracts and pacts as penal laws. Neither
is that properly a punishment; rather, it is a penal affliction
received for the help of the spirit.”
Concina21 admitted that the words of the prologue of the
Dominican Constitutions presented a problem. He solved it in
this way, “In one way they participate of the nature of law.
In another they recede from the true nature of law. And so
they are mere counsels and not altogether true laws, but con­
stitutions which are referred to as laws: and for that which they
attain, perhaps they are more than sufficient.”
It is safe to say that the rules and constitutions of religious
orders are special norms, the observance of which greatly assists
the religious to acquire perfection. They are really ascetical
norms thought out by the great masters of the spiritual life, and
approved by the Church. They are proposed for those who wish
19. Cf. Clancy, "St. Thomas on Law,” in Vol. Ill of Benziger Brothers’ English
translation of the Summa Theologica of Saint Thomas (New York, 1948), pp.
3270-3276.
. . „
20. De Controversiis, Tom. II, "De Laicis, no. 6.
21. Concina, Theologia Christiana, Vol. II, De Jure Nat. et Gen., Lib. Ill,
c. ix, no. 3.

to proceed unceasingly towards perfection within a religious
community.
Although the laws of a purely positive society bind no further
than their constitution demands, yet disobedience is often sinful
per accidens on account of injury to a third party, contempt shown
to the rule which is a sacred thing, etc.
There is no point in appealing to the existence of merely
penal laws in religious orders as a valid argument for their
existence in civil society. As we have shown, there is no founda­
tion for a comparison. Henry of Ghent,22 who was the first to at­
tempt it, did not give any reason whatsoever for transferring
the merely penal law theory’ from religious orders to civil law.
And no one since, among all the authors who have followed his
example, has justified his position. They simply adopt it as
though it were safe and solid grounds upon which to build the
merely penal law theory without ever examining the illogical
foundation upon which it is based.23

22. Aurea Quodlibeta, III, q. 22.
23. Koch, "Zu der Lehre von den sog. Ponalgesetzen,” Tubinger Theologische
Qlartalschrift, Vol. XXXII (1900), pp. 204ff.; Vol. XXXIV (1904), pp.
574ff. Cf. also, Litt, "Les Lois Dites Purement Pénales," Revue Ecclesiastique
de LIEGE, Vol. XXX (1938-1939), pp. 141ff.; Castillo, "La Ley Meremente Penal
y la Législation Eclesiastica,” La Cienca Tomista, Vol. LXIV (1943), pp. 26ff.;
Lopez, "Theoria Legis Mere Poenalis," Periodica de Re Morali Canonica
Liturgica, Vol. XXIX (1940), p. 29.

64

<T·
«

Chapter VI
AN ANALYSIS OF THE OTHER EXAMPLES
WHICH AUTHORS GIVE OF PURELY PENAL LAWS

I

I. TRAFFIC LAWS CONCERNING VEHICLES
t:

ANY of the examples authors give of what they consider
purely penal laws obviously do not fit into that category,
even if it could be proved philosophically that such laws exist.
Prümmer1 speaks of the laws governing the speed of moving
vehicles as an example of a law that binds only as regards the
penalty. Perhaps thirty years ago, when that learned and famed
author wrote his excellent manual, the speed at which auto­
mobiles traveled along the highways did not gravely endanger
the life, limbs, and property of others using the same thorough­
fares. Today sudden death on the highways, especially in con­
gested areas, happens entirely too frequently to justify such an
opinion. Think for a moment of the many people killed by im­
prudent automobile drivers who explain: "It was late at night.
I did not see him. I did not think there was anybody on the
road at that hour but myself." That alibi does not justify. The
laws regulating the speed at which a man may drive are estab­
lished to cover exactly those situations. There is a common
danger. Therefore the law binds all men at all times. No one is
permitted to drive an automobile so fast that he will be unable
to control an unexpected situation. Whoever does that is morally
guilty of the consequences.
Many times one who knows of the existence of the merely
penal law theory will say: "I can go through a red light; after
all, it is only going against a penal law.” A look at the statistics

M

1. Theologia Moralis, Vol. I, no. 209.

65

;

-

* Kl·

in the United States which tell of the great numbers of people
killed and injured each year on account of such conduct reveals
that ignoring traffic signals is a grave matter. Many people, also,
have lost their lives by hitting parked vehicles which lacked the
required parking lights. Civil governments must and do pro­
mulgate laws to protect the life and property of its citizens.
These laws bind morally according to the gravity' of the matter.
There may be certain traffic laws in some localities which are
so unimportant that they do not bind in conscience. But that
must be proved; it cannot be presumed. Possibly in certain cities
there are traffic laws which are either unnecessary' or unjust. Of
course they would not bind, simply because they lack the reason
of a law, but that, too, must be proved.
II. THE TAX LAWS
Although no reputable author will dare deny either that the
legislator has a right to impose taxes or that the citizens are
bound in conscience to bear the expense of their civil govern­
ment, some writers2 unhesitatingly state that tax laws in most
regions are merely penal. To support their imprudent assertions,
they offer no more proof than the usual unsound and illogical
argn its put forth to defend the existence of the purely penal
law theory — the persuasion of the people, the heavy punish­
ments inflicted, the fact that the legislators do not consider
conscience, etc.
Genicot-Salsmans3 is typical of those who hold this opinion.
They divide the question into five assertions. In the first as2. Angelus a Clavasio, Summa Angelica, title "Pedagogium”; Navarrus,
Manuale Confessarjorum, c. i, p. 263; Berardi, Praxis Confessariorum
(Faventia, 1898), II, p. 176; Crolly, Deps. Theol. de Justitia et Jure, III,
1001; Frassinetti, Compend. della Teol. Morale (2nd ed., Genoa, 1866), I,’304;
Davis, Moral and Pastoral Theology, II, 338ff.; Bucceroni, Institutiones
Theologiae Moralis (Rome, 1892), Tom. I, De Legibus, no. 81.
3. Theologia Moralis Vol. I, nos. 573-574.

sertion they admit that just taxes oblige in conscience. In
the second assertion they hold that it is certain that unjust
tributes do not oblige in conscience, but add: "Si autem tantum
quod ad excessum injusta sunt, non debentur nisi quod ad partem
in qua justa sunt." They also warn that in case of doubt as to
whether or not a tax is just or unjust, the presumption stands with
the superior. Then, in the fifth assertion they express the opinion
that it is more probable that the tax laws in most regions are
purely penal. Génicot-Salsman give three reasons:

1. Even in former times there were not lacking doctors who
considered these laws, at most, merely penal.
2. Conscientious men interpret tax laws in this way.
3. It is at least probable that modern taxes are unjust in
many states and cities.
As for the first reason, the authority of the doctors carries no
more weight than the intrinsic reasons they offer for their
opinion.4 We have considered them already in this work and
found them wanting. We have also rejected the second reason.5
The third reason contradicts the principles they laid down in
their first assertion; for surely the whole amount of the taxes
is not unjust. Therefore, only what is excessive does not bind;
if we would grant that a tax law is entirely unjust, it would still
not be a penal law. It would be an unjust law; that is, not a
law at all. It would have no binding force whatsoever.
Other authors6 admit that direct taxes bind in conscience,
but they say that indirect taxes are no more than penal laws.
Noldin and Lehmkuhl both cite the persuasion of men and the
heavy-punishment arguments. Marc adds a new twist. He says

4. Ibid., Chapter III.
5. Idem.
6. Ballerini, Opus Theologicum Morale (Prato, 1890), I, 322; Marc, Inst.
Morales Alphonsianae, I, no. 967; Lehmkuhl, Theologia Moralis, I, no. 981;
Noldin, De Praeceptis (New York, 1926), no. 315.

67

that indirect taxes do not have such an intimate connection with
the common good as do direct taxes. That distinction does not
seem to be true. The revenue which the governments collect is
all used for the same purpose — the support of the government,
its institutions and projects. If there were no indirect taxes, the
direct taxes would have to be raised to a point where they would
also bring in the amount of money now obtained by indirect
taxation. Then, too, no one has settled the dispute as to what
constitutes a direct tax and what constitutes an indirect tax. In
the United States the Supreme Court has decided that income
taxes are indirect taxes. Why would income taxes bind less than
levies laid on real estate? Is there any inherent reason?
The method by which a government may collect money to
carry on its existence is not determined by the natural law. It
is left to the prudent judgment of the lawmakers. If they de­
cided to raise all their revenue by indirect taxation, they would
still be acting within their rights. In demanding the payment
of indirect taxes, the sovereign is no less a minister of God than
he is when he exacts direct taxes. He is still acting for the
defense and good organization of society. As long as justice is
observed, tax laws are real laws and bind in conscience according
to the gravity of the matter.
III. HUNTING AND FISHING LAWS
Practically every author who defends the existence of penal
laws cites hunting and fishing laws as examples. It is such a
common practice that there is no need to refer to any specific
author. Laws regulating these matters differ in each locality,
because of diverse conditions. Generally in the United States
a permit is required and a small tax is imposed. The money
collected forms only a small percentage of the expenditures nec­
essary for the upkeep of a bureau charged with the task of

JZ

preserving wild life, keeping the lakes and streams clean, and
protecting the hunting grounds. Surely it is just to demand that
those who benefit from this service bear at least a part of the
expense in a special manner. Undoubtedly it is not a grave ob­
ligation because of the poverty of matter; nevertheless, it is an
obligation, even though a light one.
There are other laws which restrict the time, place and kind
of animals that may be hunted or fished. It would be difficult
to question the justice of such regulations. They are established
in order to preserve wild life and to safeguard human life and
property. If it were not for such laws, certain types of wild life
would have become extinct long ago. God provided animals for
the use of all men and also for future generations. His temporal
ministers have a duty to see to it that animals will be preserved
and not wantonly destroyed, as would easily happen if there
were no regulations.7 In places where hunting and fishing form
a means of livelihood and food supply for a nation, naturally the
obligations contained in hunting and fishing laws are proportion­
ately graver.

IV. ANOTHER FAVORITE

Laws pertaining to the cutting of trees, restrictions on graz­
ing privileges, and rotation of crops are likewise often cited as
examples of purely penal laws, as though the object of these
laws was of slight concern. Actually, these laws are framed in
order to promote soil conservation, one of the greatest problems
facing modern civilization. Soil conservation is very necessary
for the welfare of mankind. Millions of people throughout the
7. As did happen in the case of the buffaloes in the Western part of the United
States during the last century. The wanton destruction of buffaloes caused wide­
spread starvation among the native Indians of the Northwestern part of the United
States. It was not a matter of light concern.

world are hungry. Experts tell us that this condition will grad­
ually grow worse unless steps are taken to remedy the situation.
The sources of our food supply are low. Every nation in the
world has an obligation to enforce these laws and to pass new
laws to safeguard its water supply and farmlands. Nations must
prevent floods and control rivers. Soil-conservation experts say
that the first step in this direction is to prevent the needless
cutting of trees, to promote rotation of crops, and to correct
grazing laws.
It can be objected that moralists refer only to the cutting
of branches for kindling wood in the wintertime, or that they
restrict their comments to the grazing of sheep and goats on the
lands of rich landlords. Perhaps that is what they had in mind,
but they make no such distinctions in their manuals. In that
case there are two possibilities. Either there is a proportionate
cause and no sin is committed, or the matter is so insignificant
that no grave immorality is implicated. In either case there is
no obligation to undergo a penalty except per accidens.
V. AN ODD EXAMPLE

Davis8 attributes a strange statement to Bucceroni: "Some
laws, though once not merely penal, have become so, because
they have been observed as penal only. Again, laws which are
effectively enforced by public authority are to be considered
penal.” That statement seems absolutely incorrect. Can the
observance or non-observance of a law change its essence, its
nature, its object or the relationship between a necessary act and
a necessary end? Either a specific act or the omission of a certain
8. Moral and Pastoral Theology, I, 147-148. Davis does not cite the
place in Bucceroni where that passage can be found. I was not able to find it in
Bucceroni’s tract on laws (Tractatus de Legibus), but I did not have the op­
portunity of consulting the 1916 edition of Bucceroni’s work which Davis used. In
any case, I simply took the idea and estimated its worth even though I cannot
definitely attribute it to anyone.

70

act is necessary for the common good or it is not. If it is neces­
sary and a legitimate authority has properly commanded it, then
it is a law which binds in conscience. If it is not necessary in
any way, shape or form for the common good, then that partic­
ular regulation has lost its reason for being a law. As to the
second half of the above statement, a simple example suffices
to demonstrate that it is repugnant to common sense. If in a
nation the law requires one to drive on the left hand side of the
road and then if for a long while all automobile drivers obeyed
this law, it could be considered to be efficaciously enforced by
public authority. If, however, a man decided some morning to
deliberately drive on the right hand side, endangering the lives
of all the other motorists, would he be guilty of no more than
a merely penal fault?
VI. WHICH AND HOW MANY LAWS ARE PENAL?

There has always been an idea abroad that all civil laws are
penal, but it has never gained much popularity.9
A few authors assert that the majority of civil laws can be
considered penal,1011while others, seeing what an unwholesome
effect such a view could have, declare that the majority of civil
laws are moral and that the number of penal laws is rather
limited. For instance, one well-known manual11 contains the
following restrictions: "Where the object of laws directly per­
tains to the promotion of moral virtue in the republic and to
curbing vices; or, if something is necessary in order to protect

9. Konings, Theologia Moralis (New York, 1882), Tom. I, no. 178; Kenrick,
Theologia Moralis (Mainz, 1860), Tom. I, Tract VI, c. iii.
10. Cf. Konings, op. cit., Tom. I, no. 178; Kenrick, op. cit., I, Tract VI, c. iii.
11. Sabetti-Barrett, Compendium Theologiae Moralis (New York, 1931),
Tract III, c. v, no. 114, q. 1.

*

·.. e-.i"

the rights of individuals and of the family, to maintain agree­
ments formed by a contract, to enable public officials to fulfill
their obligations in these and in similar cases, no law can be
formed that will be merely penal; such laws will truly bind
'sub culpa et poena.’ ” There is nothing wrong with the declara­
tion which the author made, but one may ask how much further
the authority of civil magistrates extends. The above enumera­
tion seems to have exhausted the limits of civil jurisdiction.
Practically every civil law in the civil code can be reduced to one
or the other of the categories w’hich Sabetti-Barrett mentions in
the paragraph quoted above.
It is true that many exponents of the merely penal theory
limit the application of their theory to things indifferent in them­
selves to the common good. Many actions truly have no essential
relation to or connection with the common good from their intrin­
sic nature, but in concreto, when placed, their influence is always
harmful or beneficial because of the circumstances of time, place,
person, etc. For example, in traffic laws, the law of nature, the
condition of the thoroughfares or the automobile do not demand
that vehicles be driven on the right hand side or on the left hand
side of the highway; it must be determined by law. Once it
has been determined on which side of the road automobiles shall
be driven, it certainly pertains to the common good that all
obey the law.

• >ν ρ

~ ήκ · < j

•w

§
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A?. ù

t*.· : r?

Chapter VII
THE MERELY PENAL LAW THEORY
IS NOT NECESSARY
REQUENTLY when it is suggested that there is no such
thing as a civil law which does not bind in conscience, such
remarks as the following are sure to be heard: "If you say that
penal laws bind in conscience, you have to distinguish between
theory and practice. In practice you cannot place such a heavy
burden on the shoulders of honest citizens. It would be impru­
dent. Civil laws are too multiplied and too complex. Every
time a man turned around he would become guilty of a venial
sin. A sane and happy life under such conditions would be next
to impossible. Some people would become affected with a bad
case of scrupulosity. Others would become as punctilious as the
Scribes and Pharisees of old.”
Although the above remarks are often heard, they need not
be taken seriously. The plain fact is that most of the laity do not
ever have a clear concept of their ordinary duties in regard to
civil laws. The vast majority of them have never heard of the
merely penal theory. The theory is not of any value to them
right now. For the most part, the penal law theory is limited
to professors of moral theology and their students. Often, as a
result, when ecclesiastics disregard a law which they think is only
penal, they cause scandal among the laity and especially among
non-Catholics, who have no idea that a penal law exists, but
who do expect priests to be good and obedient citizens.
Those who shout that a denial of the merely penal law
theory would create unnecessary hardships on men seem to forget
that only a just law binds in conscience. Ordinances which
exceed the authority of the rulers have no binding force. It is
obviously not sinful to violate enactments which prohibit citizens
from attending church services or restrict their right to marry.
73

■■■■

Decrees or acts which are for purely private gain of a ruler or a
group have no power to bind the conscience of men. The same
can be said of disproportionate taxes and other overburdensome
laws. This powerful property is restricted to real laws, to true
laws and just laws.
A mark of a just law is that it is consistent with man’s human
nature. It insists that he act with reason. All civil law urges man
towards a life in accord with reason, towards prudence, tem­
perance, justice and fortitude. Law' must be reasonable. The
dignity of the human person demands that. An insight into the
very purpose and character of a just law7 always reveals that it is
no more than a norm of a reasonable, prudent man. Legislators
usually publicly announce the purpose of the law7 so that the
citizens will understand the reasonableness of it and be more
apt to observe it. Rommen says, "Hence the lawgiver precisely
in those governments in which the law7s do not originate in public
deliberations, almost always adduces, generally in a detailed
and solemn form, the motive for the law.”1
Not every regulation contained in a law is a moral norm.
Many things in the body of a law have only an insignificant pur­
pose of being a means to an end. They have no real moral
content — as for example, many of the technical rules governing
legal procedure or organization of the law courts. These norms
bear such a technical, formal character that the qualification of
moral or immoral cannot be applied to them. Likewise, questions
touching the bureaucratic organization of certain parts of the
government fall into this category.2 It is plain that these norms
bear such an instrumental character in relation to the material
law that we need not consider them in relation to morality
except per accidens. Generally, if they are disregarded, an
1. The Natural Law (St. Louis, Mo., 1947), translated by Thomas R Hanlev
p. 199.
y’
2. Ibid., pp. 213-214, Peinador, op. cit., Vol. I, no. 393.

74

admonishment from the authorities is sufficient to urge a more
careful observance of such procedures.
It is not necessary to have recourse to the penal law theory
to avoid placing too great a burden upon honest citizens. An
application of the ordinary principles of moral theology suffices.
For example, all will admit that human law does not oblige
if the end of the law and the means necessary to achieve it are
out of proportion. Human law does not oblige under a grave
inconvenience out of proportion to the nature of the law. Then,
if in a particular case the observing of a certain law would be
simply useless, it does not oblige. In these instances it is not
necessary to appeal to the penal law theory; because even the
imposition of a penalty would be against reason. Of course, we
exclude any case which involves acts that are intrinsically evil,,
such as adultery, idolatry, etc.
Lopez proposes the application of a certain epikeia3 in civil
matters just as we do in cases involving ecclesiastical law when the
required conditions are present. The humanity of the law would
seem to demand that its rigor be tempered in particular cases;
where there is an evident reason and an impossibility of having
recourse to the proper authority. The virtue of prudence — in­
deed, the natural law itself — would dictate the application of
epikeia. After all, legislation exists for the welfare of men,
not man for the legislation.4
It is true that generally the civil law does not recognize the
principle of epikeia, but it does make use of it indirectly under
another name. As Rommen5 says, all laws require a moral foun3. Lopez, "Theoria Legis Mere Poenalis,” Periodica de Re Morali Canonica,
Vol. XXIX (1940), p. 31.
4. Rodrigo (op. cit., Vol. II, no. 355) criticizes Lopez for carrying over the
principle of epikeia into civil law. He says that he would make what should be
rarely applied a common occurrence. That does not seem to be a fair appraisal of
Lopez’ idea, for he specifically states: "Neque existimandum est frequenter acci­
dere casus si res bene perpendantur in quibus ad hoc temperamentum sit recur­
rendum.”
5. The Natural Law, p. 213.

dation. The will to achieve an even greater approximation of
the positive law to the norms of morality is so deeply rooted
in man that even the positive law is always referring to morality.
Often enough the judge, as was already the case among the
Romans, with their doctrine of ''aequitas,” is not content with a
mechanical subsuming of particular instances under the general
norm, but allows equity to play its part. In extreme cases, how­
ever, he will go back to the intention of the lawmaker, who is
assumed to will only what is moral; or, if the literal meaning is
impossible to discern, he puts forward an independent interpreta­
tion of the meaning of the law on the ground that the lawgiver
could not have willed anything unjust.
There always remains nevertheless, in the civil officials, the
authority to inflict a reasonable penalty, if in their judgment a
complete acquittal would have a harmful effect on the general
public. Then, too, they have the duty of preventing any danger
of abuses that might arise from the application or the misapplica­
tion of the above principle.6
In judging the binding force of a law, one should always
examine its nature. Not all laws have the same connection with
the natural law. There are some which pertain to the very es­
sence of society. These must be observed. Likewise, laws per­
taining to things which involve the rights of others must always
be obeyed, but some laws, by their intrinsic nature, permit an
exception. For instance, in some localities there is a law which
forbids driving a bicycle on the sidewalk, yet in case one riding
a bicycle in the street found it dangerous for one reason or
another and noticed that no one was on the sidewalk, he could
6. Although there is a certain similarity between Lopez’ idea and the theory
of dispensability which Woroniecki proposes, they are really very different from one
another. According to Woroniecki’s theory, one could dispense himself; but he
could not prove that a dispensation was ever granted by the superior. The natural
law, however, permits, even sometimes demands, the application of epikeia when
circumstances change the material of the law to such an extent that to act according
to the letter of the law’ would be evil.

76

sidestep the law without being guilty of a moral fault. Even the
obligation of submitting to a penalty would, from the very nature
of his action, be doubtful; for, after all, the bicycle rider acted
reasonably.
Many laws of slight social significance can be obeyed pas­
sively; that is, one is ready to obey at the request of the authority,
but does nothing until asked. For instance, a man sitting in his
automobile waiting for his wife to choose her new hat, would not
be morally guilty if he overparked his car. He simply needs
to hold himself ready to obey the police when they tell him to
move on. Lopez attaches a great deal of importance to passive
obedience, but in the example he gives, of passing through cus­
toms, he does not make sufficient distinctions and leaves the way
open for grave crimes against the welfare of a nation. Each
country has the right to protect itself; and disregard of some of
the custom laws, such as taking certain types and amounts of
currency into a country, could strangle the country economically.
The multiplicity of laws and their complexity in the modern
world does not cause as grave a difficulty as it would seem at
first glance. After all, we need only know and obey the laws
which concern our own duties and privileges. And when we
run into something complicated, we can always consult a prudent
friend or an attorney. The general laws which apply to all people
are well known to those who have average intelligence. It must
be kept in mind that the vast bulk of laws framed by modern
legislators apply only to special groups within the social body.
During their training period or in colleges and universities, the
members of the various professions become well acquainted with
the laws which pertain to their work.
No one can deny that to observe the dictum of Christ, to
render to Caesar the things that are Caesar s, is not always easy.
By divine arrangement, life in this world, after the fall of man,
was not meant to be a bed of roses. The objection that obe77

7Λ

dience to civil authority makes great burdens for honest people
is useless. After all, when Saint Paul gave his famous admonish­
ment to the early Christians, the pagans surrounding them knew
of no such thing as conscience, yet that did not deter Saint Paul.
He knew the burden he was placing upon the Christian, but he
also knew that justice demanded obedience to lawful authority,
and he insisted upon it. Confessors and pastors must do likewise
today. They must not minimize the obligations of civil law, but
rather teach men that the commands of their civil magistrates
are based on the foundations of divinity and that submission to
their salutary commands is necessary in order to please God and
avoid sin. After all, civil obedience is a part of the law of God.
Pastors and confessors must teach the law of God in its totality.
The faithful need to be reminded from time to time that civil
rulers have authority from God to govern them, and that they
must obey the reasonable commands of these rulers. They must
be warned that unless they obey the civil laws rightfully imposed
they cannot be called virtuous. They must be reminded that civil
regulations are intended as a help towards their eternal and their
temporal happiness. Citizens should be told that if their actions
conform to the true standards raised by their leaders no one will
deny them the reward of virtue. Thus they can be called good.
Those who refuse to recognize the divine authority which lies
behind civil laws rightfully commanded, cannot be called virtuous.

78

ESPECT for authority is an important factor in safeguarding
public morals, in creating unity among the citizens of a
country, in forming obedient subjects; but the purely penal law
theory, in reducing a large part of the civil code to only the
external forum, certainly seems to have an opposite effect. It
relegates certain ordinances to a very unimportant position. If
men begin to feel that certain laws which have been made by
legitimate authority are not obligatory in conscience, they eventu­
ally begin to hold those laws in contempt. And that feeling of
contempt is very apt to get out of control and spread to all laws
until the only thing that restrains them is fear of the police. They
will forget that they are duty-bound to obey just civil laws. Many
people know of only one sin, i. e., being caught doing something
wrong. They live by a code that has only one norm. "It is all
right if you don’t get caught." The merely penal law theory
in practice could be reduced to the same thing in so far as a
penal law obliges in conscience only as regards accepting the
penalty, if the law is not observed. It would be absurd to say
that the penal law theory is responsible for the axiom, "It is all
right if you don’t get caught,” but it has an unwholesome rela­
tionship to it, in so far as it can be reduced to the same thing.
Men can draw that conclusion from the merely penal law theory.
Then too, the line separating merely penal laws and the moral
law is so vague that grave abuse can creep into the conduct of
men under the disguise of penal laws.
Theologians are aware of the dangers inherent in the theory.
It is for this reason that many of them, although they defend the
theory, warn their students not to teach it. Merkelbach says,
"Nevertheless this (penal law theory) should not be taught to

R

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the people publicly, but they are to be led to the observance
of laws, especially since the violation of merely penal laws
surely, if it is habitual, can become culpable per accidens, either
because by the occasion of it the right of a third party is injured
or scandal is given, or because charity towards oneself or others
is impaired, since one imprudently exposes himself and his
family to grave penalties and great dangers, infamy and condem­
nation, or because some would use violent resistance, or they
would be prepared to use violence against those who are bound
by duty to apply the law.”1
Aertnys-Damen gives practically the same admonishment.
"Confessors should not too easily or imprudently state that civil
laws are purely penal, lest they give scandal or stir up false
accusations and hatred towards the ministers of the Church and
even towards the Church itself. Indeed, they should generally
inculcate observance of civil laws in the manner which Saint
Paul and Christ Himself did,2 because whatever may be said of
the intention of the legislator, often there is present, in whole
or in part, a natural obligation,3 as happens in laws concerning
a legal price, crops, workers, dominion of spouses, of children,
of authors, in defense of the country, hereditary rights and con­
tracts, the right order in social economy, taxes; indeed, those
things merely explain or determine the natural right itself.”4
After explaining the doctrine of purely penal laws and giving
his approbation to it, Sabetti-Barrett gives this admonishment:
"Whatsoever it is, nothing of this should ever be mentioned
to the people, especially the less-educated. They ought to be
1. Summa Theologiae Moralis, Vol. J, no. 287.
2. That statement seems to be an admission that Christ and Saint Paul placed all
civil laws in one classification — namely, moral.
3. That seems to be an admission that very seldom in concreto, considering the
actual circumstance, would the condition be present which permits a law to be
called penal even if the theory were true.
4. Theologia Moralis, Vol. I, no. 160.

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persuaded to fulfill all laws.”5 That also seems to be an open
admission that the theory is both useless and dangerous. If it
is true, why not tell the people? Are we to place them in the
danger of committing a formal sin when there is insufficient
matter? Why oblige them to more than the law calls for? We
have no right to do that.
Génicot-Salsman,6 after proposing the theory that tax laws in
most countries today are merely penal, goes on to say that the­
ologians agree that it is very much better that citizens pay just
taxes, legibus morem gerentes”; confessors, he says, should
counsel this mode of acting. He seems to say that they are penal
laws, but that in practice we are to act as though they were
moral laws.
No one will question the prudence of those theologians who
advise pastors and confessors to be careful and in general not
to teach the penal law theory to the people. But the question
naturally follows: Of what value is a principle in moral theology
which cannot be put into practice? The theologians admit that
it is too dangerous to teach it openly. Then, is it not also useless?
The theory of merely penal laws is dangerous because in
practice it would reduce law enforcement to a kind of game in
which the citizen would try to circumvent the law, while the
magistrates try to enforce it. The theory offers an occasion for
casting aside and neglecting to pay attention to moral reasons
in fulfilling laws. For the citizens are not compelled to observe
the law except from servile fear. Since they may disobey without
sin, moral reasons and reasons from the consideration of virtue
and honesty need not be attended to. And since fulfilling the
penalty does not oblige in conscience unless it is imposed, it is
licit to use all ingenious and astute means to impede the pro­
nouncement of the punishment. Hence obedience that should be
5. Compendium Theologiae Moralis, Tract III, c. v, no. 114.
6. Theologia Moralis Vol. I, no. 574.

given to civil authorities is reduced to a certain kind of ridiculous
contest. On one side the subjects try to escape the burdens and
punishment of the law. On the other side stand the police and
the courts, which try to twist from the subjects what the common
good demands. Under that system the magistrates have no more
authority than the physical powers of a policeman or a jailer.
If the penal law theory must be accepted, what becomes of
our constant protestations of conscientious loyalty to the laws and
institutions of our country’? If our moral obligation towards a
part of the laws in the civil code is only an obligation of not
evading punishment, how can we claim to be better citizens than
those who hold that civil legislation has no higher authority or
greater sanction than the physical power of the policeman or
jailer?7
In speaking of police power, we might note that Cathrein,8
in rejecting the theory of Spenser concerning the origin and
foundations of law, has this to say: "No one will assert of a
man that he acts from duty if he abstains from certain actions
through fear of police penalties or the anger of his fellow man.”
But in defending the theory of penal laws, Cathrein cannot offer
any higher motive to move men to obey those legitimate com­
mands of a superior which are classified as penal laws.

7. Cf. John A. Ryan, op. cit., pp. 404-411.
8. Cf. Cathrein’s article on law in the Catholic Encyclopedia, IX, 53.5g

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Chapter IX
MERELY PENAL LAWS AND SAINT PAUL
N CHAPTER XIII, verse 5, of the Epistle to the Romans,
Saint Paul makes no distinction between laws that bind from
the fear of the wrath of the rulers and laws which bind in con­
science. All the commentators who give a complete exegesis of
that passage1 explain it in the sense of "not only for this reason
but also for that reason sense. According to the commentators,
Saint Paul simply announced a twofold reason that obliges us to
obey the civil authorities. None of them mentions anything at all
about the possibility of proving the existence of merely penal law
from the passage. They do not positively exclude it, but it is
significant that not one of the five major commentators consulted
makes any reference to the penal theory at all. If the penal law
theory were in any way contained in Saint Paul’s declaration on
the duties we have towards the civil law, or if it flows naturally
from it, or if it is a conclusion that can logically be drawn from
the words of Saint Paul, why do such outstanding Scripture
scholars as Père Lagrange, Prat, Estius, Comely, and Cornelius
a Lapide make no reference to such a possibility?
The early Christians were by their conversion freed from the
slavery of sin and the yoke of the Old Law. In the thirteenth
chapter of his Epistle to the Romans, Saint Paul reminded them
that this freedom which they enjoyed as children of God, did
not exempt them from the bonds of subordination and depend­
ence, engagements and contracts, relationships and obligations,
which either nature had established or circumstances created.

I

1. "Wherefore you must needs be subject not only because of the wrath but

also for conscience’ sake."

83

In no uncertain terms he told them that their privileges as chil­
dren of God did not destroy or suppress the hierarchical relations
of society.
The command of Jesus, ' Render unto Caesar the things that
are Caesar’s and to God the things that are God’s,”2 was so
incisive that it must have engraved itself deeply into the memory
of all who heard it.3 It was appropriate to inculcate this duty
and to show the reason for it, and this is what Saint Paul does in
Chapter XIII of his Epistle to the Romans.

Prat says that Saint Paul formulated these three propositions.
"By right and in principle all power comes from God,4 and in
practice the established power is from God. Furthermore, the
power is exercised in the name of God.’5 Prat adds: "The first
two propositions w'ere almost an axiom among Paul’s Jewish
contemporaries. The Apostle confines himself to proclaiming them
and adding to them the evident consequence that to resist the
power established by God is to resist the command of God. He
insists even more upon the third proposition. The prince is the
minister of God, whose duty it is to promote the welfare of
society, especially to praise and reward good citizens and to
terrify and punish the bad. It is necessary, therefore, to obey

2. Matt. 22:15-22.
3- Père Marie-Joseph Lagrange says: “When Jesus bade the Jews to render to
Caesar the things that are Caesar’s, He did more than give a permission: He laid
down a rule to be followed, the rule that His disciples must submit to established
order. Later, Saint Paul was to give the basic reason for this, which is that all
authority is derived from God." — Cf. Thb Gospel of Christ, translated by
members of the English Dominican Province (Westminster, Md., 1947), II, 140.
4. Christ confirmed this in His response to Pilate, “Thou wouldst have no
power at all over Me were it not given thee from above." — John 19:11.
5. We have already discussed that point in Chapters II and III; namely, a
minister of God acts in God's name, binds in God’s name. Therefore he cannot
restrict the laws he makes to his own forum but necessarily they belong to the
forum of God, which also necessarily excludes both a purely juridical fault and a
merely penal law.

him, not only through fear of the punishment to be avoided,
but also on account of the dictates of conscience.”6
Even when the feelings of the authorities towards the Church
changed, the teaching of the Church remained the same. In
fact, it was then that Saint Paul enjoined upon Timothy to cause
prayers to be said 'for kings and for all in high positions”7 —
that is, in authority; and he ordered Titus: "Admonish them to
be subject to princes and authorities, obeying commands, ready
for every good work.”8 It was then that Saint Peter wrote: "Be
subject therefore to every human creature for God’s sake, whether
to the king as supreme or to governors as sent by him for ven­
geance on evildoers and for the praise of the good. For such is
the will of God.”9
Prat makes only one exception for a civil law which would
not bind in conscience; i. e., if a civil law would come into con­
flict with the divine law of God. If the case occurs, the faith­
ful have the Gospel precepts for their guidance.10 Their reason
and the conduct of the Apostles before the Sanhedrin would tell
them that the higher authority should prevail. With this excep­
tion, which does not detract from the general principle of obe­
dience to established authority, the Christians of the first centuries
were always distinguished for their submission; their deference
to the public authorities was always the triumphant defense of
the apologists and the immediate refutation of the popular
calumnies about a pretended hostility of the Christians to the
imperial institutions. The Fathers of the Church testify with
what zeal the infant Church conformed to the instructions of
Saint Paul. The adoption of the penal law theory could hardly be
called a zealous adherence to the teachings of Saint Paul.
6. Cf. Prat, The Theology of Saint Paul, translated by John L. Stoddard
(London, Burns Oates, 1945), Π, 323-325.
7. I Tim. 2:2.
8. Titus 3:1.
9. I Peter 2:13-15.
,
10. Matt. 22:21; Mark 12:17; Luke 20.25.

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J <·

Comely says, "Whence it follows that laws from a legitimate
power, whether civil, concerning what is treated here (Rom. 13:
1-7), or ecclesiastical laws legitimately formed, oblige in con­
science, and transgressors of them are guilty before the human
judges and especially before God, the Supreme Judge. The
contrary' doctrine, according to which the legitimate precepts of
a legitimate power do not bind, not only is false and alien to the
sense of Scripture, because we ought to be subject to every human
authority on account of the Lord; it is also an injury and an
enemy of every virtue, because it renders men hypocrites, or,
according to the Apostle, *ad oculum et non ex animo servien­
tes’” (cf. Eph. 6:6; Col. 3:22).n Certainly all must admit that
the penal law theory is both alien to the sense of Sacred Scrip­
tures and to the exegesis of Comely.

Estius has all the matter that is found in Comely. In addi­
tion, Estius declares that our soul, informed by the natural law,
dictates this to us (obedience to law) and says that the prince
must be obeyed as the minister of God. He says that "political
laws bind in conscience — i. e., before God, and not only in the
forum called external, for that would be because of anger and
not on account of the conscience of the subjects.”11
12 He does not
make any exception or mention any laws that bind only to that
forum called external which are called merely penal. He seems
to exclude them, at least negatively.
Cornelius a Lapide says: ’’Not only on account of wrath, but
also on account of conscience.” Then he goes on to reject the
explanation popular among the early Greek commentators, ac­
cording to whom this passage (Rom. 13:5) meant that on
account of the consciousness of the benefits which we receive
11. Commentarius
678-679.
12. Commentarius
Ρ· 293.

S. Pauli Epistolas

in

Omnes S. Pauli Epistolas (Mainz, 1858), Tom. I,

86

I

Romanos (Paris, 1927), pp.

in

ad

1 ···

from the magistrates we pay tributes, but properly on account of
our conscience, lest we be guilty before God; for the magistrate
is the minister of God as was said in the (verses) preceding.
Whence conscience dictates that the magistrate must be obeyed
as a minister of God, and, consequently, he sins against God who
does not obey him.13
Père Lagrange gives a scholarly explanation of the passage14
in which he shows that the word wherefore” in verse 5 is related
to the principle given in verse 1 and to the twice-repea ted
affirmation that the civil power fulfills its role as minister of
God. Consequently it is necessary, it is an inescapable obligation,
to submit oneself. It is necessary, then, to obey not only, as one
says, from fear of the police, but from a principle of conscience.
It is the fundamental rule which includes the acceptance of
judgment, even the submission to measures taken by the authori­
ties. Père Lagrange demonstrates that the passage is much
clearer and more forceful in the original Greek, but not a word
does he mention about the possibility of any exception that would
relegate laws to the external forum only.
A Lapide, Estius, and Comely implicitly, at least, condemned
the whole penal theory; because, as they finish their exegesis of
this passage by saying, the doctrine limiting the force of laws
to the external forum not binding in conscience, is an enemy
of virtue; for "it renders men hypocrites or, according to the
Apostle (cf. Eph. 6:6; Col. 3:22): ’ad oculum et non ex
animo servientes.’ ”15 The same condemnation can be applied to
the penal law theory; because it does cut away the obligation in
conscience from certain laws which oblige only ”ad oculum et
non ex animo.” It is hard to reconcile the penal law theory with
I
Qf Cornelius a Lapide, Commentaria in Omnes S. Pauli Epistolas
(Turin, 1934), Tom. I, p. 176.
.
14 Cf M J. Lagrange, Aux Romains (Paris, 1916), p. 376, no. 5.
15.' Cf.’ Comely, Commentarius in S. Pauli Epistolas ad Romanos.

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the warning that Saint Paul gave to the Colossians: "Slaves,
obey in all things your masters according to the flesh, not with
eye-service seeking to please men, but in singleness of heart, from
fear of the Lord.”16 All must admit that if we accept the penal
law theory in regard to the laws which fall into that classification,
we need not obey in all things or in the singleness of our heart
or from fear of God, but only obey when the police are watching.

Chapter X
SAINT THOMAS AND PENAL LAWS
N ANALYZING the nature of law in the first five questions1
of his tract on law, the Angelic Doctor shows that all law is
a divine principle of human activity. For Saint Thomas, all law,
natural as well as positive, is derived from the eternal plan of
government existing in the mind of God. He proclaims God as
the foundation of every true law. Divinity permeates every line
of Saint Thomas’ treatise on human laws which men make in
imitation of their Divine Lawmaker. Whether Saint Thomas
treats of the subject matter of laws formed by man, their binding
force, or their permanence, he never divorces it from God. For
him law is always a regulation given by God and bound to God;
every law can be traced back to the essential order of things and
ultimately to the mind of God, the supreme source of truth and
law. That is why Father Farrell says, "From Saint Thomas’ point

I

penal law theory. The results seem impressive until the quotations
are weighed in their original context; then their conclusion ap­
pears to be not drawn from Saint Thomas but forced out of him
in a somewhat artificial manner.
Vangheluwe, although he too quotes Saint Thomas to defend
the merely penal theory, candidly admits that Saint Thomas did
not even think about such a theory, far less teach it.3
The most popular text, of course, is the response of Saint
Thomas to the first objection of article nine, question one hun­
dred and eighty-six of the "Secunda Secundae”: "There is also
a religious order, namely, that of the Friar Preachers, where
suchlike transgressions or omissions do not oblige by their very
nature under sin either mortal or venial, but only bind subjects
to undergo the punishment affixed thereto, because in this way
they are obliged to such things.”4
Those who triumphantly refer to that passage or quote it as
the last word seem to forget that although Saint Thomas spoke
in this way of the rules of religious societies, it does not follow
that the same measuring stick can be used on civil laws. They
are two different types of societies entirely. A religious com­
munity is a particular, positive society. A civil community is a
natural society. Saint Thomas had a perfect grasp of the matter
contained in the Summa. When he wrote the tract on laws in
"Prima Secundae,” he knew that the rules and constitutions
of the Dominican order did not bind under sin. He also knew
the reason; namely, the will of the chapter of his community held
in 1236. If he thought that a civil magistrate had the authority
3. "Tamen fatendum est S. Doctorem ipsum nondum cogitasse de applicatione
talis modi obligandi (i. e., non obligandi in conscientia ad actum praeceptum) ad
leges ecclesiasticas universales et ad leges civiles.”— (From "De Lege Mere Poe­
nali," Ephemerides Theologicae Lovanienses, Vol. XVI (1939), p. 393.
4. "In aliqua tamen religione, scilicet Ordinis Fratrum Praedicatorum, transgres­
sio talis vel omissio ex suo genere non obligat ad culpam neque mortalem neque
venialem sed solum ad poenam taxatam sustinendam quia per hunc modum ad talia
observanda obligantur.” — Summa Theol., Ha Hae, q. 186, a. 9.

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to restrict the obligatory force of true laws, surely Saint Thomas
would have said so in question ninety-six of the "Prima Secun­
dae,” where he treats of the obligatory force of civil laws. That
would have been the logical thing to do. Saint Thomas was too
thorough a teacher to be guilty of such an oversight.

In response to the second objection, article nine, question
one hundred and eighty-six, "Secunda Secundae,” Saint Thomas
wrote another phrase which warms the hearts of the defenders
of merely penal laws: "Not all things that are contained in the
law are handed down through the manner of a precept, but cer­
tain things are proposed through the manner of a certain ordin­
ance or statute obliging to a definite penalty.’’5 This statement
counts against the penal law theory. Saint Thomas merely says
that everything contained in a code of law is not a law, that
some things are merely directives and are not made in the manner
of a law or precept. In the law formally promulgated may be
contained both what is principally and primarily commanded or
forbidden, and also those things which are convenient for the
better observation of the law. For instance, in a certain state the
law may declare that whoever wishes to drive an automobile
must take a driver’s test and obtain a license, and should carry
the license with him when he drives an automobile. If a police­
man demands it, he must show him his license. Now, the primary
object of such a law is twofold: to collect the legitimate tax
imposed upon automobile drivers and to force all to prove that
they are competent, authorized drivers. However, since they must
prove this on many occasions, they should always have the
license available. If they put the civil authorities to some un­
necessary expense in proving that they do have a license, they
5 "Non omnia, quae continentur in lege, traduntur per modum praecepti sed
quaedam proponit* per modum ordinaüoms cujusdam vel statui obhgantis, ad
certam poenam.” — Summa Theol, Ha Hae. q. 186, a. 9.

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must accept the penalty inflicted for the inconvenience they have
caused the officials. This would be a case where the poena per
accidens does not correspond to a culpa?
In his response to the question "Whether human laws bind
a man in conscience,’” there is not the slightest indication that
Saint Thomas had any idea of a civil law which binds only as
regards the penalty. The burden of his answer is: "Laws framed
by man are either just or unjust. If they are just they have the
power of binding in conscience from the eternal law whence they
are derived.” In that clear-cut reply there is certainly no mention
of a penal law or of the possibility of a law that does not bind
in conscience. Nor does the phrase, "They have the power of
binding in conscience,” imply that although the power of binding
is present, not all laws actually do bind in conscience. As Crowe
points out,8 the Latin is clearer: “Si quidem justae sunt habent
vim obligandi in foro conscientiae.” It is evident that ''habent
vim” is not equivalent to "possunt obligare.”
In article four, question one hundred and eight, of "Secunda
Secundae,” there is a part of a paragraph which the patrons of
the merely penal theory seize upon with great delight and flash
about as though that one short statement of Saint Thomas ended
the whole controversy. The hallowed words are, "And according
to this sometimes one not guilty is punished, not, however, with­
out a cause.”9 That is an outstanding example of taking a
phrase out of its context and twisting it to suit one’s own pur­
pose. Those who would use that article to uphold the merely
6. Cf. Rodrigo, op. cit., Vol. II, p. 393; Gotti, Theologiae ScholasticoDogmatico, Tom. I, Prima Secundae, q. 6, dub. 2, no. 2.
7. "Respondeo quod leges positae humanitus vel sunt justae vel injustae. Si
uidem justae sint, habent vim obligandi in foro conscientiae a lege aeterna a qua
erivantur." — Summa Theol., Ia Hae, q. 96, a. 4.
8. The Moral Obligation of Paying Just Taxes, p. 85.
9. "Et secundum hoc aliquis interdum punitur sine culpa non tamen sine causa,”
Summa Theol., Ila Ilae, q. 108, a. 4.

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penal law theory would have to ignore both the title and the
subject matter of the article. The title of the article is, "Whether
vindictiveness is to be exercised against those who sin involun­
tarily.” In the body of the article, Saint Thomas declares that
punishment, according to its proper nature, is not inflicted except
on account of sin. A punishment of that kind is inflicted vindic­
tively and no one receives it in that manner except for that which
he did voluntarily. In the second part of his article he goes on
to explain that sins committed involuntarily should be punished
not vindictively but medicinally, in order to heal injuries caused
by past sins, to prevent future sins, and to move men towards
good. In other words, by making those guilty of an involuntary
sin pay some penalty, the lawmaker forces them to be more care­
ful and prudent in the future. The whole second part of the
article treats of punishments inflicted for sins that were not
voluntary. Saint Thomas also speaks of the many sufferings and
humiliations we have to endure to acquire virtue but not of any
guilt that man may acquire in the external forum. In the article
Saint Thomas simply makes a contrast between punishments
inflicted because of acts placed voluntarily and those placed in­
voluntarily. In the first part of the article he shows that the
punishments imposed for the former are always vindictive. In
the second part he proves that penalties levied because of the
latter are medicinal, not punitive. They are laid upon man as
spiritual helps. Obviously, those words, "and according to this
sometimes one not guilty is punished, not, however, with a cause,
considered in their context, have no reference to merely penal
laws as such, but only to penalties imposed because of involuntary
acts.
Appeals are also made to article seven, question eighty-seven,
of the "Prima Secundae.” The title of the article "Whether
every punishment is inflicted for a sin" looks promising, but

yields very little that can be used in building a Thomastic founda­
tion for the merely penal theory. It is true that in the article
Saint Thomas speaks of punishment not reduced to sin as a cause,
but again he is not speaking of punishments inflicted because of
personal voluntary offenses. He is speaking in that part of the
article about things we have to endure because of the fall of our
First Parents, which left man corrupt and infirm. Because of the
debilitating effects of original sin, man cannot avoid sin and
cannot progress in virtue, unless he endures privations and hard­
ships. Hence Saint Thomas wishes to point out that man bears
many ills which do not have a personal sin as a cause. A mere
passing glance at the second part of the article shows that it has
no real relationship to penal laws but is only a discussion of the
effects of original sin.10
Nevertheless we must observe that sometimes a thing seems penal and
yet has not the nature of punishment absolutely. For punishment is a
species of evil, as was stated in the first part. Now evil is a privation
of a good and since a man’s good is manifold, viz., the good of the
soul, the good of the body and external goods, it happens sometimes
that a man suffers the loss of a lesser good that he may profit in a
greater good; as when he suffers loss of money for the sake of bodily
health, or loss of both of these for the sake of his soul’s health and the
glory of God. In such cases, the loss is an evil to a man not absolutely
but relatively; and hence it does not answer to the name of punishment
absolutely but of medicinal punishment, because a doctor prescribes
bitter potions for his patients that he may restore them to health. And
since such are not punishments properly speaking, they are not referred
to sin as their cause, except in a restricted sense; because the very fact
that human nature needs a treatment of penal medicines is due to the
corruption of nature, which is itself the punishment of original sin.
For there was no need in the state of innocence for penal exercises in

10. Cf. Billuart, Cursus Theologiae, Vol. IV, Tractatus de Peccatis, Dis­
sert. VII, art. 4.

94

order to make progress in virtue, so that whatever is penal in the ex­
ercise of virtue is reduced to original sin as its cause.11

In article five, question one hundred and four, of the
"Secunda Secundae,” Saint Thomas asks the question "Whether
subjects are held to obey their superiors in all things.” Saint
Thomas replies that subjects are held to obey their superior in
those things which pertain to the disposition of human things and
acts according to the nature of the superior’s authority. He gives
only two cases in which there is an exception: (1) If anyone
demands something that is against the command of a greater
superior (i. e., against the divine law), the subject is not held
to obey. (2) If any superior commands that which is beyond
his competence, subjects are not obliged. For instance, in those
things which pertain to the interior acts of the will, subjects are
not obliged to obey human superiors. No mention is made of any
exception in which a subject is obliged only to undergo the
penance prescribed.
The next article of the same question, entitled "Whether or
not Christians are bound to obey the secular powers in all things,”
also provided Saint Thomas with an opportunity to mention some­
thing about penal laws, but he remained silent about such a pos­
sibility. He gave a straightforward reply without making any
11. "Sciendum tamen est quod quandoque aliquid videtur esse poenale, quod
tamen non habet simpliciter rationem poenae. Poena enim est species mali,
ut in Primo dictum est. Malum autem est privatio boni. Cum autem sint plura
hominis bona, scilicet animae, corporis, et exteriorum rerum; contingit inter­
dum quod homo patiatur detrimentum in minori bono, ut augeatur in maiori:
sicut cum partitur detrimentum pecuniae propter sanitatem corporis, vel in utroque
horum propter salutem animae et propter gloriam Dei. Et tunc tale detrimentum
non est simpliciter malum hominis, sed secundum quid. Unde non habet simpliciter
rationem poenae, sed medicinae: nam et medici austeras potiones propinant infirmis,
ut conferant sanitatem. Et quia huiusmodi non proprie habent rationem poenae,
non reducuntur ad culpam sicut ad causam, nisi pro tanto; quia hoc ipsum quod
oportet humanae naturae medicinas poenales adhibere, est ex corruptione naturae,
quae est poena originalis peccati. In statu enim innocentiae non oportuisset aliquem
ad profectum virtutis inducere per poenalia exercitia. Unde hoc ipsum quod est
poenale in talibus, reducitur ad originalem culpam sicut ad causam.” — Summa
Theol., Ia Hae, q. 87, a. 7.

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distinctions: ”... through the faith of Christ the order of justice
is not taken away, but is made stronger. The order of justice
requires that subjects obey their superiors; for otherwise the stabil­
ity of human affairs could not be observed. 12
Saint Thomas begins his treatise on law with the question
"Whether or not law is something pertaining to reason.’’13 In
his affirmative reply the Angelic Doctor argues that the rule and
measure of human acts is reasonable, for it pertains to reason to
direct things to their end. Law is a rule and measure of acts
whereby man is induced to do something or is restrained from
placing an act. Therefore, law is something pertaining to reason.
Saint Thomas not only speaks of the fact that a legislator must
use his reason in making a law, but it is also evident that he holds
that the law itself in jacio esse pertains to reason. In other words,
the law itself which is promulgated, always pertains to reason.
The act commanded or the act forbidden is reasonable.
On that foundation those wTho oppose the merely penal theory
lay their fundamental argument. A law is an ordinance of reason.
But to act against reason is sinful. Therefore, to disobey a legiti­
mately established law is sinful. The argumentation seems sound
and logical. Every law is a rule or measure of human acts. Acts
are good in so far as they conform to the standard established
by a just law. They are evil in so far as they deviate from that
rule or measure. Those who defend the merely penal theory
attempt to refute that argument by insisting that the end of a law
can be achieved by the threat of a penalty. We beg permission
to remind them that a threat is not a command. A threat of
punishment belongs to the sanction of the law. It is secondary
and outside the essence of the law. The fundamental measure
in determining the extent to which a law obliges is not the means
12. " ... et ideo per fidem Christi non tollitur ordo justitiae sed magis firmatur.
Ordo autem justitiae requiritur ut inferiores suis superioribus obediant; aliter enim
non posset humanarum rerum status conservari.”
13. Summa Theol., Ia Hae, q. 90, a. 1.

used in achieving the end of the law. The obligatory force of
a law is determined by its relation to the general object of all
]aw — that is, to the common good. If an act or omission assists
in promoting or maintaining something necessary for the com­
mon good, the act is virtuous. Then, since a true law is always
established because the common good required it, breaking a
law in some manner injures the general welfare and is sinful
according to the gravity of the law. In other words, the obliga­
tory force of a law is not dependent upon the sanction which the
legislator attaches to a law. Its binding power is determined
by the object, end and circumstances of the law itself. It can be
objected that obedience to some civil laws would contribute very
little to the common good. That is undeniably true. Since, how­
ever, the penalty is always in proportion to the sin, the obligation
to undergo a penalty for disobeying a relatively unimportant law
would correspond to the light obligatory force which the law
itself possessed. Not every law binds sub gravi.
Saint Thomas’ answer to the question "Whether an individual
act can be indifferent’’ fortifies the above conclusion.14 He says,
It sometimes happens that an act is indifferent in its species
which yet is good or evil considered individually.... Every indi­
vidual act must needs have some circumstance that makes it evil
or good, at least with respect to intention of the end. For since

14. "Respondeo dicendum quod contingit quandoque aliquem actum esse indif­
ferentem secundum speciem, qui tamen est bonus vel malus in individuo considera­
tus. Et hoc ideo, quia actus moralis, sicut dictum est, non solum habet bonitatem
ex obiecto, a quo habet speciem; sed etiam ex circumstantiis, quae sunt quasi
quaedam accidentia; sicut aliquid convenit individuo homini secundum accidentia
individualia, quod non convenit homini secundum rationem speciei. Et oportet quod
quilibet individualis actus habeat aliquam circumstantiam per quam trahatur ad
bonum vel ad malum, ad minus ex parte intentionis finis. Cum enim rationis sit
ordinare, actus a ratione deliberativa procedens, si non sit ad debitum finem ordi­
natus, ex hoc ipso repugnat rationi, et habet rationem mali. Si vero ordinetur ad
debitum finem, convenit cum ordine rationis: unde habet rationem boni. Necesse est
autem quod vel ordinetur, vel non ordinetur ad debitum finem. Unde necesse est
omnem actum hominis a deliberativa ratione procedentem, in individuo considera­
tum, bonum esse vel malum." — Summa Theol., Ia Hae, q. 18, a. 9.

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4

i

it belongs to reason to direct, if an act that proceeds from deliberate reason be not directed to the due end, it is, by that fact
alone, repugnant to reason, and has the character of evil. But
if it be directed to a due end, it is in accord with the order of
reason and hence has the character of good. Now it must needs
be either directed or not directed to a due end. Consequently,
every human act that proceeds from deliberate reason, if it be
considered in the individual, must be good or evil.”
Note these words, ’'not directed to a due end.” If an act,
by the ver)’ fact that it is not directed to a due end, must he
considered sinful, then how is it possible for an individual to be
free of fault if he ignores an authoritative direction to a due
end? That, however, would be possible if we accepted the merely
penal law theory.

Chapter XI
THE OPINIONS OF THEOLOGIANS WHO
HAVE OPPOSED THE MERELY PENAL LAW THEORY

ANY — in fact, most — of the theologians and commenta­
tors, have favored the opinion of Henry of Ghent. They
apply the merely penal law theory to civil laws as well as to
rules and constitutions of religious orders when the same con­
ditions1 are present in civil society as in religious communities.
Many other theologians have condemned the merely penal law
theory and have demonstrated the weak foundations upon which
it stands. No more will be attempted in this chapter than to give
the opinions of a representative group who hold the theory that
all just laws bind in conscience in proportion to the gravity of
the matter.

M

I. SYLVESTER PRIERIAS (died circa 1526), according to
Priimmer a very famous and fruitful author, whose works are
well worthy of consideration in moral theology, very definitely
rejected the purely penal idea. In his Summa Summarum,2 he
spoke of the fact that the author of the Summa Angelica fol­
lowed the opinion of Henry of Ghent. Both of them, he says,
taught that there are two types of laws. One class of laws con­
tains two precepts; that is, he who disobeys these laws acquires
guilt both ad culpam et ad poenam; the other class of laws, which

1. It is well to note that all admit the main reason the rules and constitutions
do not of themselves bind in conscience is simply because there is a clause inserted
somewhere in the constitutions of religious orders which limits the obligatory force
of the rules and constitutions to the external forum; but no such qualification is
ever found in the constitution of a civil government. The same conditions, there­
fore, are never found.
. o
2. Under the title “Inobedientia, no. 2.
3. Angelus Carletus a Clavasio.

99

contain only one precept, bind not in conscience but only ad
poenam. Sylvester rejects this distinction. He says it was only
verbal and childish, because no one establishes a penalty unless
he wants something done or omitted. Then Sylvester added:
"And so it is with Saint Thomas: All human laws if they are just
bind in conscience." He says that Johannes Andreas also imitated
Henry of Ghent on this question. But that is not true. Andreas
restricted himself to a discussion of penal laws in relation to
religious alone.4 Sylvester may have been quoting Angelus a
Clavasio, who attributed such an application of the theory to
Andreas.

II. BARTOLOMAEUS MEDINA (died 1581) strongly de­
fended the thesis that all just laws bind in conscience. He used
a number of solid arguments; some of them have never been
really refuted. First, he says that the fact that human laws bind
in conscience is proved because every just law is derived from the
eternal law according to what is said in Sacred Scripture: "By
Me kings reign and lawgivers establish justice.”5 Since, there­
fore, that from which they are derived binds in conscience, these
also ought to bind in conscience. Secondly, he states that this is
the opinion of Saint Thomas as expressed in both "Prima Se­
cunda,” question eighty-seven, article seven, and in "Secunda
Secundae,” question one hundred and eight, article four. "This,”
he argues, "is known by the light of reason; for the explanation
it must be observed that the poena et supplicium are spoken of
in regard to the culpa. He then proceeds to develop an argu­
ment from the effects of original sin to demonstrate the fact
that punishment is always inflicted in order to reduce the culpa

4. Cf. In Tertium Decretalium Novella Commentaria, c. VII, *'Ne Clerici
vel Monaci,” III, 1, no. 7.
5. Prov. 8:15.

100

to equality. He concludes that sin and punishment ought to cor­
respond. For this reason, when a legislator establishes a penalty,
he demonstrates that he wishes to bind ad culpam. To this,
Medina says, Saint Augustine agreed, since he stated that every
just penalty is for sin, and on this account it hangs over one’s
head.”
Medina’s final argument is cogent and logical. If a legislator
establishes laws absolutely without a punishment, it is considered
by all as obliging ad culpam. Then if he establishes a penalty
for a transgressor, evidently he wishes it to bind ad poenam et
ad culpam; for the punishment he establishes is a sign that he
more ardently wishes that to be observed which he commands.6

III. BARTOLOMAEUS FUMUS (died 1545), the author of
Summa Armilla? is sometimes listed among those who hold that
penal laws bind in conscience. It is true in so far as he teaches
that, even though a law may contain only one precept, it neverthe­
less binds both as regards the act and the penalty. He qualifies his
position by saying that laws bind in conscience unless the superior
wills otherwise, as in the Dominican Constitutions. Whether or
not he thought that all superiors, both religious and civil, enjoyed
this power, he does not say. He makes a general statement that
can be applied universally. He does, however, emphatically de­
clare that the distinction which Henry of Ghent makes, is useless.
IV. DOMINICUS SOTO (died 1560) makes it clear that
he does not think there is such a thing as a purely penal law,
but he failed to say exactly what he means by a juridical fault.
That makes it difficult to comprehend his full doctrine on this
question. He gives all the usual arguments which show that the
penal law theory is weak. He insists that the poena is inflicted
6 Bartolomaeus a Medina, Commentaria in Primam Secundae, q. 96, a. 4.
η. Under the title ,'Inobedentia.’’

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-m: ?

1«

i * ; . »< i

because of the culpa, and must always be in proportion to it. Jn
the closing paragraph of his article on the subject, he offers a
solution for some of the difficulties which arise from the theory
that all so-called penal laws bind in conscience. He says that
certain acts of themselves are neither forbidden nor are they im­
moral, but he who wishes to place them must pay a certain tax
or fine. In this case it would be the payment of the tax which
wOuld bind in conscience.8
Soto says that if it is objected that the Dominican Constitutions
and that of other religious, do not bind in conscience because in
them it is stated the Dominicans do not wish to oblige ad culpam
but only ad poenam where the penalty without the fault is
named, he answers that such are not proper and legitimate punish­
ments, but are, as it were, agreements and pacts by which the
Friars wish to bind themselves in such a manner that if they fail
to observe the constitutions they will submit to the penalty. They
are not called penalties without a cause; for they are exacted on
account of something useful.V.
V. JOANNES AZORIUS (died 1603) discussed the question
thoroughly and concluded that it seems more probable that human
laws which have a punishment attached to them bind in con­
science, for those laws are framed so as not merely to submit
people to punishments. It is not that the legislator wishes the
violator to be free of a fault; but by means of fear of punishment
the legislator hopes to keep all within the bounds of due obe­
dience.9

VI. GREGORIUS SAYRUS (died 1603), whose works, ac­
cording to Priimmer, have always had great authority among

8. De Justitia et de Jure, I, i, q. 4, a. 5.
9. Institutiones Morales, Pars I, Lib. V, c. vi.

theologians, defended the theory that all just laws bind in con­
science. His arguments are in substance the same as those which
Medina offered. He too maintains that the infliction of a penalty
necessarily implies an obligation both ad poenam and ad culpam.
According to Sayrus, if the legislator does not wish to bind to the
culpa, then he forms a rule that has only the force of a counsel,
an exhortation, or an admonition. Such, he says, are the rules of
religious communities in which the superior expressly states that
he does not wish to bind ad culpam. The greater part of Sayrus’
comments on penal laws are no more than an attack upon the
theory of Castro.10

VII. SAINT ROBERT BELLARMINE (died 1621). Two
points of Bellarmine’s stand on the question of penal laws have
been discussed in a previous chapter. In addition, he declared
that since all law is a participation in the eternal law, anyone
who sins against either the natural or the positive law, is guilty
before God. Since no law can be made except by one having
power and there is no power except from God, Bellarmine con­
cludes that there is no law except from God. He, therefore,
who disobeys a true law disobeys God and is guilty ad culpam.
He ends this part of his argumentation with these words: "Tamen
si (per impossibilem) esset lex non a Deo adhuc obligaret ad
culpam sicut si (per impossibilem) homo existent non factus a
Deo adhuc esset rationalis.”11

a
VIII. JOANNES WIGGERS
(died 1624). This author,
like most of the theologians of his time, was preoccupied with a
consideration of laws according to the way in which they are
10. Sayrus, Clavis Regia Sacerdotium Tom. I, Lib. Ill, c. ix, no. 14.
11. De Controversiis, Tom. II, Lib. Ill, c. xi, ad 6.

103

102

Λ. Ά

:

V.

written. For instance, he declared that if a law was written dis­
junctively the subjects were bound either to obey the law or pay
the penalty; but not definitely to one or the other. The legislator,
he says, intended to bind that way; otherwise he would not have
written the law disjunctively. He says, however, that a purely
penal law binds in conscience, for the infliction of a penalty
signifies that the superior wishes that to be done to which a
penalty is attached. Furthermore, he states that the placing of
a penalty does not take away the fault, but rather emphasizes it.
Penalty and guilt are not repugnant to one another; therefore,
Wiggers says, one does not exclude the other, but instead one
is the complement of the other. It is unreasonable, he says, that
a purely penal law should bind only to the acceptation of the
penalty. In spite of those clear statements which seem to repudi­
ate the entire penal law theory, he does not really reject it in the
modern sense of the term, but only the old concept. His doctrine
is almost the same as the one Billuart proposed.12

IX. HIERONYMUS DE MEDICIS A CAMERINO (died
1622) in his commentary simply says that a law which is derived
from the eternal law has the power of binding in conscience.
But just laws are derived from the eternal law according to
Sacred Scripture: "By Me kings reign and lawgivers establish
justice." Therefore human laws have the power of obliging in
the forum of conscience. Laws not derived from the divine
law are not laws but violence. The doctrine of Hieronymus de
Medicis is clear. If the law is derived from the divine law, it
binds in conscience; any law not derived from the divine law is
really not a law. He therefore rules out any possibility of a law
which would not bind in conscience.13
12. Wiggers, Commentarius in Totam Summam Theologicam I ii ο 96
a. 4, dub. 7.
13. Summa Theologiae S. Thomae Aquinatis Doctoris Angelici Formai is
Explicatio, (Paris, 1507), Ia Hae, p. 402.

104

X. MARTINUS BECANUS11 (died 1624). This author
declared that it is not necessary that a prince intend to bind the
conscience of his subjects; it is sufficient that he intend truly and
properly speaking to institute a real law. He says that it is not
possible to establish a law which does not oblige in conscience:
"As it is not possible that I should bind myself by the vow of
chastity to observe chastity and not bind myself in conscience.”
Becanus, however, considered the obligations of laws according to
the way in which they were written. Thus he says, "A purely
penal law prescribes or prohibits nothing but only ordains some­
thing and places a penalty.” He made a distinction between laws
which prohibit or command something and mere directions and
ordinations which have a penalty attached to them. Many civil
laws and rules in religious communities, he says, come under this
classification. They are limited to things indifferent in themselves.
He adds that the placing of a penalty does not take away the
obligation which comes from the natural or divine law. The
difficulty in his theory lies in the fact that he seems to have the
idea that some acts, even when they are placed, remain indifferent.
In answering the third objection, Becanus removes some of
the obscurity from his doctrine when he states that purely penal
laws, if we speak properly, are not laws with regard to the
subjects, because they do not have the power of a precept. They
are called nevertheless purely penal laws, because they establish
penalties. It is possible for them to be called laws in regard to
the judges who are obliged to inflict punishments. It is evident
that Becanus did not teach the theory of penal laws as it is taught
today, but he did not condemn the theory entirely. The whole
difficulty in placing him in a classification lies in the fact that
he did not define or clarify the title under which the judge was
obliged to inflict a punishment upon a man who disobeyed a
mere direction.*
THfOLOGME ScKOlxsncaa, Pars II, Tr. ill, c. vii,

105

'Cat Î

1, 2.

XI. FRANCISCUS SYLVIUS (died 1649). This great Dominican theologian, like others of his day, was preoccupied
with the form of the law — that is, the manner in which it is
written; but he did not allow that to sway his judgment. He
admitted that it is not improbable that penal laws do not oblige
in conscience, but the opposite view seems more probable:
namely, that a penal law, if it is a true law strictly speaking,
obliges ad culpam.15
The arguments Sylvius puts forward are no more than a clear
and straightforward defense of the doctrine of Saint Thomas.
’’First, according to the doctrine of Saint Thomas in the body of
this article (q. 96, a. 4), all laws, if they are just, oblige in the
forum of conscience and unjust laws are the only exception to
this obligation. Therefore, purely penal laws, which have the
true nature of a law, oblige in the forum of conscience.” He
declares that they (penal laws) contain two things. One indeed
virtually: the action or omission which is punished. The other
expressly: namely, the punishment which is inflicted or is to
be inflicted.

Sylvius did not overlook the exception Saint Thomas mentions
(II a, II ae, q. 186, a. 9 ad 1), but explains: "It must be said that
these are not truly laws but ordinations and directions moving
and exhorting towards that which is fitting, nevertheless not pre­
scribing. It so happens that statutes of this kind can be found
in certain towns and other communities. Then he quotes Driedo
(Lib. II, De Libertate Christiana): "A superior is able to give a
certain constitution or ordination, willing the transgression of it
to be obligatory not under sin but only as regards the temporal
punishment in this life, if it is imposed; but such a constitution
does not have the force of a law or a precept.”16

15« Commentarii in Totam Primam Secundae, q. 96, a. 4.
16. Sylvius also cited Becanus and Vasquez as favoring this opinion.

106

In the first part of his commentary on article four of ques­
tion ninety-six, Sylvius defends the existence of the disjunctive
obligation, but that must be understood in the light of what he
said at the end of his comments about certain laws which are
made not to prohibit or command anything. They are not con­
cerned with the morality of an act. They place a certain tax
upon some acts in order to raise money for the government.

XII. DANIELUS CONCINA (died 1756), whose erudition
Saint Alphonsus praised, was definitely opposed to the purely
penal theory. He said that according to Scripture and Saint
Thomas disobedience to the prince was disobedience to God. He
sums up his idea in the following manner. The legislator is able
to make a true law which imposes on the subjects the obligation
of obeying. He is able to threaten them with punishments, but
he cannot take away the obligation of obeying. In a previous
chapter we have mentioned his idea on the rules of religious
orders. He did not think that they were true laws, but only
constitutions which are referred to as laws; and that, according
to what they attain, they are more than sufficient.17
XIII. VINCENTIUS LUDOVICUS GOTTI (died 1742)
says that all laws bind in conscience unless it is evident that in
no manner does the legislator wish to oblige ad culpam;18
nevertheless we say that such statutes would not be true laws
but a mere direction or counsel. Of this Saint Thomas speaks:
’’There is also a religious order, namely, that of the Friar Preach­
ers, where suchlike transgressions or omissions by their very

17. Concina, Theologia Christiana Dogmatico-Moralis, De Jure Nat. et
Gentium, Tom. I, la Uae» 9· 6, dub. 2, no. 1.
18. Theologica Scholastico-Dogmatica, Tom. I, la Ilae, q. 6, dub. 2, no. 1.

107

nature do not oblige under pain of sin either mortal or venial,
but bind one only to undergo the penalty imposed.”19 Gotti
explains: "But this, therefore, is because legislators did not in­
tend to make true laws, but only directive and hortatory ordina­
tions and directions; because it is fitting that what is better should
be done; but, nevertheless, they do not prescribe that it must be
done, as the holy doctor likewise notes in the answer to the
second objection.”20

19. "In aliqua tamen religione, scilicet Ordinis Fratrum Praedicatorum, trans­
gressio talis vel omissio ex suo genere non obligat ad culpam neque mortalem
neque venialem sed solum ad poenam texatam sustinendam.” Summa Theol., Ha
Ilae, q. 186, a. 9 ad 1.
20. Cf. Chapter X for an explanation of q. 186, a. 9 ad 2.

108

CONCLUSION

Since according to the merely penal theory the bligation
ad poenam is the more grave obligation, it automatically becomes
the principal part of a penal law. According to this theory, a
law would move men to act or restrain them by fear of punish­
ments or by mere threats, but that is really not moving men by
law. A law is an ordinance of right reason which authoritatively
commands men to act for the common good. A sanction contain­
ing a punishment is something outside the essence of a law,
added to it in order to move men whose reason might be blinded
by passion. Any theory which would elevate a sanction to a
point whereby it becomes the main force that a law would possess,
seems illogical, but that is the effect which a merely penal law
would have. Therefore it does not seem philosophically ac­
ceptable.
It seems justice demands that there be a proportion between
the poena and the culpa, but in the merely penal law theory the
poena is far more grave than the culpa. It is altogether out of
proportion, for it binds both externally and internally, but the
culpa binds only externally. Therefore, in the penal law theory
the gravity of the penalty does not seem to have a just cause for
its existence.
The clause inserted into the rules and constitutions of many
religious orders, limiting them ad poenam, has influenced many
famous theologians to support the merely penal law theory. They
seemed to have overlooked or not to have adverted to the fact
that a religious order is radically different in its nature and origin
from that which gives rise to the existence of a civil state.
Although they are both particular societies, yet one is a positive
society and the other is a natural society. In a positive society
men always retain the power to limit the obligations they will as­
sume. In a natural society, such as the civil state, the force of the
109

ν·%

bA- Λ ·.
va*

···■

rf'T··· V

.-A·· ■

obligations which man must assume, flows from the sociality of
his nature. These obligations are determined by eternal law, from
which civil laws are derived. All civil laws are no more than an
application of the eternal law to the everyday life of the com­
munity, according to the prudent judgment of the authorities.
Therefore, they should bind in the same manner as the eternal
law — that is, in conscience. This is the conclusion which Saint
Thomas expressed in discussing the obligations of civil law. He
made an exception for the rule of a religious order, which is a
positive society, but he made no provisions for an exception in
the case of civil laws of the civil state, which is a natural society.
And it does not seem that the exception can be validly trans­
ferred, because of the difference in the nature of the two societies.
Furthermore, no clause limiting the obligations inherent in a
true law is to be found in the constitution of any country. At
least no author has been able to name one.
Neither does the merely penal law theory receive any support
from Saint Paul, who clearly declared that the civil magistrates
are ministers of God, whose laws bind not only for the sake of
wrath but also for the sake of conscience. Since the civil magis­
trate is only a minister of God, he must always act in the name of
God and in place of God for temporal things. Beyond the forum
of God he has no authority.
The moral obligation theory seems to be in harmony with the
social doctrine of Pope Leo ΧΙΠ, who, in all his Encyclicals
which treat specifically of the nature of the civil state, its au­
thority, and the duties of citizens, never mentioned the possibility
of a law which would not bind in conscience. Outside a moral
obligation the only other means a ruler has, he says, is fear;
but the great Pontiff rejects it as a weak foundation for the
establishment of law and order in a civil society. He therefore
implicitly rejects the merely penal law theory, for it would move

110

men by fear of the punishment they might have to undergo. Pope
Leo ΧΠΙ insists that only when rulers acknowledge that their
authority comes from God and citizens recognize the fact that
civil laws bind in conscience will it be possible to safeguard
law and order and to promote justice and peace.

It also seems certain that the moral obligation theory is far
more competent for the tremendous task of protecting individual
rights and promoting the general welfare. If the moral obligation
theory is kept within the acknowledged limitations which right
reason demands, it will be neither unduly harsh nor overburdensome. And it will help to stem the tide toward laxity so pre­
valent in many parts of the world.
•
*
·
·
Although each of the systems1 which theologians offer in
defending the merely penal law theory can be disputed and
seemingly refuted,2 although it can be proved that the conditions
they demand in order that a penal law might exist are de facto
not present in present-day legislation,3 although it can be dem­
onstrated that the teaching of the merely penal law theory can
endanger the common good of the State,4 and although it can be
shown that the merely penal law theory is not necessary in order
to provide for the common good,5 yet it would be foolhardy to
condemn the merely penal law theory. Great and learned the­
ologians have advocated it for centuries. The sheer weight of
the external authority which supports the merely penal law
theory gives it a high degree of probability. Throughout this
thesis an attempt has been made to show that those who deny
the merely penal law theory defend the stronger and more prob­
able opinion.

1.
2.
3.
4.
5.

Chapters IV, V, VI.
Chapter IV, no. II.
Chapter V, no. VI.
Chapter VIII.
Chapter VII.
Ill

ί

1 '

One is also forced to admit ±at civil magistrates can establish
ordinances, directives, and regulations which would not oblige
under pain of sin, but as regards fulfillment of the temporal
punishment. If regulations were imposed in that manner, they
would lack the force of a law or precept in the strict sense. It
seems that they would be laws only in the wide sense of the term.
Such regulations could be called merely penal laws. Lopez,6
however, points out that the conditions which theologians gen­
erally require for merely penal laws cannot be found in presentday legislation. We, therefore, conclude that those who hold
the theory that all civil laws participating of the true nature of a
law bind in conscience both as to the act and to the penalty,
according to the gravity of the matter, defend the more probable
opinion.

Chapter V, no. VI.

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