Moral Theology Part 15

(a) According to the author from whom it proceeds, interpretation is authentic, if it comes from the lawgiver himself or from another authorized by him; it is usual, if it comes from common usage (i.e., from the manner in which the law is customarily observed); it is doctrinal, if it is made by learned men according to the rules of correct exegesis,

(b) According to the effect, interpretation is declarative, if it clears up what was obscure in the law; it is supplementary, if it extends or limits the law, by adding to or subtracting from the cases included under it.

(c) According to the manner in which it is made, interpretation is strict or wide, Strict interpretation gives to a word of law that least inclusive and most proper signification it bears (e.g., it understands "son" to stand for son by birth). Wide interpretation gives to a word a more inclusive and less proper signification (e.g., it understands "son" to stand for son by birth or by adoption).

387. Those Subject to Law.--Only those are morally obliged to observe human law who are subjects of the lawgiver and who have the use of reason. (a) Those who are not subjects in any sense are not bound, for to obligate by law is an act of authority and jurisdiction; (b) those who have not reached the age of reason, or who are habitually insane, are not themselves morally bound, since they are incapable of moral obligation. Of course, they may be restrained as to acts, and their rights may be determined.

388. The lawgiver himself, even though not subject, is held to observe the laws he makes. Thus: (a) if the lawmaking power resides in a legislative a.s.sembly, each legislator is subject to the body and hence to its laws; (b) if the lawmaking power is vested in an individual, he is not subject to the coactive force of his own laws, since he cannot punish himself; but he is subject to their directive force, inasmuch as the higher law of nature requires that the superior show good example by observing what he requires of others.

389. Change of Law.--The growth of knowledge and experience, or the change of social circ.u.mstances, requires now and then that human laws be improved or adapted to new conditions. But, since laws derive a great part of their influence from custom, they should not be changed unless the break with custom is compensated for by the urgent necessity of the new law, by its manifest advantage, or by the evident iniquity or harmfulness of the old law, In brief, the common good should be the norm by which to decide whether a law should be retained or changed.

390. Const.i.tutional law, as being fundamental and organic, is more immutable than ordinary law. (a) If given to a society established according to the positive ordinance of a superior, it cannot be abrogated or modified by the legislative authority of that society, since this would be contrary to the will of the founder. Hence, the Church has no power to change the fundamental const.i.tution given her by Christ, who prescribed the religious society as established by Him to be necessary. (b) If a const.i.tutional law is given to a society which is perfect and necessary from the law of nature, such const.i.tution can be modified for extraordinary reasons and in the special ways provided (e.g., by amendments approved by the people).

391. The Law of Custom.--Custom (i.e., a long-continued practice that has acquired binding force) is able to establish a new law or to do away with an old law. For the will of the lawgiver is manifested not only by words, as happens in the written law, but also and more clearly by repeated and continued acts, as happens in the case of the unwritten law of custom. In a democracy it is the consent of the people who follow the custom as law that imposes the obligation; in a monarchy it is the consent of the ruler who permits the custom.

392. With reference to their legal effects, there are three kinds of customs: (a) customs according to the law, which are those that confirm by use an existing law; in this way custom interprets law (see 386); (b) customs beside the law, which are those that introduce a new obligation that is not prescribed by any written law; in this way custom establishes law; (c) customs contrary to law, which are those that remove the obligation of a previous law; in this way custom repeals, at least in part, the law to which it is opposed.

393. Custom has not the power to establish or repeal a law, unless it possesses the requisites of law itself (see 285). Hence arise the following conditions:

(a) Since the exercise of the legislative power requires freedom, customs do not possess legal force unless they have been practised freely. Hence, a custom that has been established by force does not suffice;

(b) Since laws can be made only for perfect societies, customs have not the force of law, unless they are practised by a perfect society, or by a majority of its members who are representative. Hence, a custom observed by a family or by a minority of the voters in a body that has its own jurisprudence has not the status of law;

(c) Since laws must proceed from competent authority, customs do not make or unmake law, unless they have the approval of the ruling power.

In a society where the legislative function rests with the people (e.g., in the ancient democracy of Athens), the fact that they follow a custom with the purpose of enacting it into law or of using it against an existing law is sufficient approval. But if the supreme power is not with the mult.i.tude, their customs do not obtain the force of legislative acts, unless approved by the const.i.tuted authority;

(d) Since law needs to be promulgated, a custom, to have the effect of law, must be practised by public acts through which it becomes known to the people as a whole.

394. Customs that have the other requisite conditions begin to be obligatory or derogatory as soon as the approval of competent authority is had. (a) If the approval is given expressly, the custom has the force of law at once; (b) if it is given tacitly, inasmuch as the lawgiver, knowing the custom and being under no restraint, does not disapprove, the custom has the force of law as soon as tacit consent is recognized by the learned and prudent; (c) if it is given by the law itself, which explicitly accepts reasonable customs, the custom has the force of law when it has lasted for ten years, or other length of time prescribed.

395. If the superior disapproves of a custom or maintains diplomatic silence for fear of greater evils, his consent is withheld, and the custom cannot be deemed as of legal force.

396. There are other conditions necessary that a custom may acquire the force of law. (a) Since a law is an ordinance knowingly imposed by the will of the legislator, a custom does not const.i.tute a law if it is followed through the erroneous conviction that it is already a law, or if there is nothing to indicate a will to make it obligatory. Signs of the intention to raise a custom to the dignity of a law are the punishment of transgressors of the custom, the observance of the custom even at the cost of great inconvenience, the opinion of the good that it should be followed, etc. (b) Since a law cannot prescribe except what is reasonable and for the common good, a practice opposed to the Natural or Divine Law, or expressly reprobated by written law as an abuse, or one that is injurious to the welfare of the community, cannot become unwritten law through custom.

397. There are special conditions in order that a custom may do away with an existing law. (a) A written law is not repealed unless the legislator wills to take away its obligation, and hence desuetude or a custom contrary to law does not abrogate a law unless it manifests a purpose not to be obligated by what the law prescribes. This it does if the whole people regard a certain law as a dead letter, or feel that circ.u.mstances or the common welfare require the opposite of what the law requires, and have no scruple in acting uniformly according to this conviction.

(b) A written law is not repealed, if it is immutable, or if a change would be prejudicial to the common interest; similarly, therefore, a custom cannot abolish a law, unless this law is one that can be abrogated by human acts, and that is not essential to the public good.

Hence, customs contrary to the Commandments or to the Law of Christ, customs that are expressly condemned in Canon Law as corruptions, customs that encourage lawlessness or afford occasions of sin, can never do away with a law, no matter how long or by how many they are practised.

398. Those who start a custom contrary to law are sometimes in good faith, and hence are not guilty of disobedience. (a) It may be that they are in ignorance of the law, but have the interpretative will not to be bound by it; (b) it may be that they know the law, but sincerely think that, on account of conditions, it has ceased of itself.

399. Even when a custom has been started in bad faith, it may continue through good faith, and so become not a violation, but an abrogation of the law. Changed conditions may make the law useless or harmful; or the very fact that it is no longer observed may make it too difficult to enforce.

400. Today customs do not so often attain the force of law. Moreover, so difficult is it to know whether any custom has all the qualities necessary for establis.h.i.+ng, modifying, or abrogating a law that only an expert is competent to judge in this matter.

401. Dispensation.--Human law has not the immutability of the Divine Law. Hence, not only may it be changed, but it may also be dispensed.

Dispensation is a relaxation of the positive law made for a particular case by him who has the competent authority.

(a) It is a relaxation of the law--that is, it takes away the obligation of the law. Thus, it differs from permission, which is fulfillment of what is conditionally allowed by the law.

(b) Dispensation is made for a particular case--that is, it is granted when the provisions of the law, though beneficial to the community as a whole, are not suitable for a particular person or case. Thus, it differs, first, from abrogation and derogation, which remove the obligation of the whole or a part of the law for the entire community; and, secondly, from privilege, which is granted permanently as a private law.

(c) Dispensation is given by competent authority--that is, by the legislator or others who have the lawful power. Thus, it differs from _epieikeia_ and private interpretation, which are made by those who have no power to dispense.

(d) Dispensation is a relaxation of the positive law, for since the Natural Law is immutable (see 305), no dispensation can be given from its requirements. Thus, dispensation differs from the official declaration or interpretation of the Natural or Divine Law (see 315).

402. Those who have the power to dispense from a law are the lawgiver and others duly authorized. (a) The lawgiver himself can dispense as follows: in his own laws, since he was able to make them; in the laws of his predecessors, since his authority is equal to theirs; in the laws of his inferiors, since they are his subordinates. (b) Others can dispense who have received from the law, from their superior, or from custom the necessary authority to dispense.

403. Those Who May Be Dispensed from a Law.--(a) Since dispensation is an act of jurisdiction, only those can be dispensed who are in some way subject to the dispenser. Since, however, the jurisdiction used in dispensing does not impose an obligation but grants a favor, it is held that he who has the power to dispense others may also dispense himself, if his power is not restricted. (b) Since dispensation is an act of authority, it may be exercised even in favor of one who is absent, or ignorant of the dispensation or unwilling to accept it. But, since as a rule favors should not be forced, the validity of a dispensation generally depends upon the consent of the one dispensed.

404. The power of dispensing has for its end the common good, and therefore it must be exercised: (a) faith fully, that is, not for reasons of private interest or friends.h.i.+p; (b) prudently, that is with knowledge of the case and with judgment that there are sufficient reasons for dispensation.

405. In order that the reason for a dispensation be sufficient, it is not required that it be so grave as to const.i.tute a physical or moral impossibility of keeping the law, since the obligation of the law ceases in the face of impossibility (see 317, 487), without the need of dispensation. Hence, lesser reasons suffice for dispensation.

406. A dispensation must be granted whenever the law itself or justice requires it. The following cases are usually given: (a) when there exists a reason that requires, according to law, that a dispensation be granted; (b) when the common good, or the spiritual good of an individual, or his protection from some considerable evil, demands the concession of a dispensation.

407. A dispensation may be either granted or denied, when the case does not demand it and the superior after careful investigation is not certain whether the reason is sufficient or insufficient; otherwise, a greater responsibility would rest on the superior than the law can be thought to impose--viz., that of attaining certainty where it cannot easily be had.

408. He who dispenses without a sufficient reason is guilty of the sin of favoritism, and is responsible for the discontent and quarrels that result. He is guilty of grave sin thus: (a) if serious scandal or other inconvenience is caused, even when the dispenser is the lawgiver himself; (b) if the law obliges under grave sin and the dispensation is not granted by the lawgiver, but by an inferior who usurps the right to dispense.

409. The subject of dispensation is guilty of sin: (a) if he asks a dispensation when he knows for certain that there is no sufficient reason for it; (b) if, having been denied a dispensation, even though unjustly, he acts against the law; or if he knowingly makes use of an invalid or expired dispensation.

410. Sufficient reasons for a dispensation can be reduced to two cla.s.ses: (a) private welfare (e.g., the difficulty of the law for the pet.i.tioner, a notable benefit he will receive through the dispensation, etc.); (b) public welfare (e.g., the benefits that are secured to the community, or the evils that are avoided through the dispensation).

411. _Epieikeia_.--Since human laws regulate particular and contingent cases according to what usually happens, and since they must therefore be expressed in general terms, exceptional cases will occur that fall under the law, if we consider only the general wording of its text, but that do not fall under the law, if we consider the purpose of the lawgiver, who never foresaw the exceptional cases and would have made different provision for them, had he foreseen them. In such exceptional cases legalism insists on blind obedience to the law-books, but the higher justice of _epieikeia_ or equity calls for obedience to the lawgiver himself as intending the common welfare and fair treatment of the rights of each person.

412. _Epieikeia_ may be defined, therefore, as a moderation of the words of the law where in an extraordinary case, on account of their generality, they do not represent the mind of the lawgiver; which moderation must be made in the manner in which the lawgiver himself would have made it, had he thought of the case, or would make it now, were he consulted. Hence, _epieikeia_ differs from the various causes that take away the obligation of a law, for it supposes the non-existence of obligation from the beginning and non-comprehension in the law.

Thus: (a) it is not revocation, desuetude, restrictive interpretation, or dispensation; (b) it is not cessation on account of impossibility; (c) it is not presumed permission or self-dispensation.

413. In its use _epieikeia_ is at once lawful and dangerous.

(a) It is lawful, for it defends the common good, the judgment of conscience, the rights of individuals from subjection to a written doc.u.ment, and from oppression by the abuse of power;

(b) it is dangerous, for it rests on the judgment of the individual, which is p.r.o.ne to decide in his own favor to the detriment of the common good as well as of self.

414. _Epieikeia_ by its very nature imposes certain limits on its use.

(a) It is based on the fact that a certain case is not comprehended in a law, because the legislator did not foresee it.

Hence, _epieikeia_ is not applicable to the Divine Law; for the Divine Lawgiver foresaw all cases that could arise, and so excluded all exceptions (see 315). This is clear as regards the Ten Commandments and other precepts of the Natural Law, since they deal with what is intrinsically good or bad, and are unchangeable (see 307). But it applies also to the prescriptions of the Positive Law of G.o.d, and apparent cases of _epieikeia_, such as the eating of the loaves of proposition by David (I Kings, xxi. 6), can be explained by the cessation of law or divine dispensation. Examples: One may not excuse certain modern forms of cheating on the plea that they were not thought of when the Decalogue was given. One may not omit Baptism on the ground that Christ Himself would have excused from it, had He foreseen the circ.u.mstances.

(b) _Epieikeia_ is based on the principle that the words of a law must be subordinated to the common good and justice. Hence, it is not applicable to those laws whose universal observance is demanded by the common good--that is, to irritant laws. Any hards.h.i.+p suffered by an individual through the effect of such laws is small in comparison with the injury that would be done to the common welfare if there were any cases not comprehended in such laws; for irritant laws are the norms for judging the validity of contracts and other acts, and public; security demands that they be uniform and certain. Example: One may not contract marriage with a diriment impediment, on the plea that the Church would not wish the impediments to oblige under the serious inconvenience that exists in one's case.

415. The dangers of _epieikeia_ also place limitations on its use.

(a) There is the danger that one may be wrong in judging that the lawgiver did not wish to include a case under his law. If this is not certain, one should investigate to the best of one's ability, and have recourse, if possible, to the legislator or his representative for a declaration or dispensation. It is never lawful to use _epieikeia_ without reasonable certainty that the legislator would not wish the law to apply here and now.

(b) There is the danger that one may be in bad faith in deciding that the common good or justice requires the use of _epieikeia_; the motive in reality may be self-interest or escape from obligation, Hence, a person should not use _epieikeia_ except in necessity, when he is thrown on his own resources and must decide for himself; and, even then, he must be sure that he acts from sincerity and disinterestedness.