Law in General (Part 2)

Law and precept:

Precept may be considered in its genus and in its species

In the generic sense-precept is used to signify law and also precept in the specific sense.

In the specific sense-i.e., a mere precept, signifies an ordinance which has not the perfection of law. It may be distinguished from law:

1. In its end: the end of a law is the common good, whereas the end of a precept is a private good.

2. In its author: a legislator is a public person charged with a political community; the author of a precept may be a private person possessed only of private power; v.g., the father of a family.

3. In its subject: a law is not binding outside the territory of the community for which it was made; a precept may be imposed on a person, and in this case is binding on him everywhere;

4. In its stability: a law is of itself perpetual, and does not disappear at the death of the legislator; a precept may of its nature be transitory, i.e., given for a definite time or for a definite act, and, unless otherwise stipulated, terminates when its author dies or loses his authority.

Effect and acts of law:

The effect of law consists in its making men good. This it does in two ways:

1. It induces subjects to be duly obedient to those governing them, and thus leads them to their proper virtue: for the proper virtue of a subject consists in due submission to superiors.

2. It directs men to good actions, for the end of every law is the common good.

The acts of the law are four in number: it commands, prohibits, permits, and punishes.

1. Law commands, or at least may command, acts which are generically good, i.e., acts of virtue.

2. Law prohibits acts which are generically evil, i.e., acts of vice.

3. Law permits acts which are generically indifferent. All acts which are not totally evil or totally good may be called indifferent.

4. Law punishes in as much as it induces its subjects, because of fear of punishment, to obey it.

Moral obligation:

Whether law commands, prohibits, permits, or punishes, it is always obligatory. For, even when law permits certain acts, it imposes the obligation of not preventing these acts. Therefore we may say that obligation is a general effect of law. And, since this obligation is imposed in relation to human acts, it is called moral.

The concept of obligation connotes necessity. But the first principle in the order of human action is the end. Hence we may say that moral obligation is a certain necessity which derives from the end.

Moral obligation may be defined: the absolute necessity of doing or omitting certain acts in view of an end.

1. Necessity: that is necessary which cannot not be.

2. Absolute necessity: thus the doing and omitting of human acts are not only useful for the attainment of the end, but are so related to it that its attainment is impossible without them.

3. Absolute necessity in view of an end: thus is excluded conditional, i.e., hypothetical, necessity.

Necessity which derives from an end, i.e., final necessity, is absolute when it concerns means without which the end intend cannot be attained; it is hypothetical when it concerns means without which an end which is not intended, but could be intended, could not be attained; v.g., a ship or airplane is of absolute necessity for a person who makes a crossing of the Atlantic ocean. On the supposition that a person wishes to cross the Atlantic ocean, a ship or an airplane is of hypothetical necessity.

Since the common good is the end of law, the obligation which results from law is of absolute necessity in relation to the end.

Considered in reference to human acts, moral obligation may be defined: the property of a human act in virtue of which this act must be performed or omitted in view of the ultimate end.

Moral obligation, morality, and liberty:

Moral obligation is distinct from morality.

Morality -is the transcendental relation of a human act to its object as conformed or not conformed to right reason and the eternal law.

Moral obligation-is the transcendental relation of necessity which a human act has to the ultimate end.

Moral obligation is a kind of bond, but does not destroy liberty.

Liberty-is the physical power of doing or not doing an act.

Moral obligation-is necessity deriving from the end, and therefore is not destructive of the physical power of acting or not acting.

For, even though the doing or omitting of an act be necessary for the attainment of the end, the will always has the physical power of not tending to the end in particular circumstances, i.e., has the physical power of acting or not acting, even though it does not tend to the end.

Division of law:

Law is divided into the eternal law, the natural law, and positive law.

Eternal law-is the law which resides in the supreme intellect which governs all things, i.e., in God.

Natural law-is the law which is imprinted in us by nature; in other words, it is the law which natural reason knows in the light of the first principles of the practical order.

Positive law-is law established by the free determination of the legislator.

Positive law may be essentially (per se) positive or accidentally positive.

An essentially positive law-is a law which contains determinations of the natural law not found in the natural law; v.g., the punishment of murderers is prescribed by the natural law, but the particular kind of punishment is determined by positive law.

An accidentally positive law-is a law which promulgates precepts contained in the natural law; v.g., the law by which a legislator forbids theft or murder.

Positive law, essentially or accidentally such, is divided into divine law and human law.

Divine law-is law freely promulgated by God. Sometimes the natural law is called divine because it derives from God as the immediate author of nature.

Human law-is established by human authority.

Finally, human law is civil or ecclesiastical as it derives from civil authority or from ecclesiastical authority.

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Law in General (Part 1)

Cicero in the Senate

Notion of law:

In a very wide sense of the term, law is a rule by which a being is moved to action or withheld from it. In a sense, we speak of law even in reference to irrational beings; v.g., the laws of physics.

 

In a wide sense, law is a rule of actions which are dependent on reason; v.g., the laws of art.

 

In a more restricted sense, law is the remote and extrinsic norm of the morality of human acts. Thus any precept is a law; v.g., the precept of a father, of a master, etc.

 

Law, in its strict and proper sense, is a rule of human acts given to a community which commands what accords with right reason.

 

Real definition of law:

 

Law—in its strict and proper sense, is defined: an ordinance of reason designed for the common good, and promulgated by one who has charge of the community.

 

Ordinance—in its modern acceptation, sometimes signifies the act of commanding, and sometimes the act of establishing order. As used in the definition, it means a dictate which establishes an order or disposition. a.) for the attainment of a due end. b.) by means which are proportionate to the end.

 

Ordinance of reason—for only reason, which alone is competent to devise means for the attainment of an end, can establish the relation of one thing to another.

 

This may be proved briefly. Law is a rule of human acts. But the rule of human acts is reason: for reason is the first principle of human acts; and that which is the first principle in any genus is the rule and measure of that genus; v.g., unity is the genus of numbers. Therefore it follows that law is something which pertains to reason.

 

Hence, although law presupposes an act of the will, it formally derives from reason. For law is a motive ordinance of reason, and ordinance given only in as much as the will tends to an end, i.e., wills an end.

 

Designed for good—if it were an ordinance for evil, it would not truly be a law.

 

For the common good—for reason, in its direction of human acts, is concerned with the ultimate end, i.e., with happiness, which is the first principle of human acts. Therefore, since law is an ordinance of reason, it is concerned chiefly with the direction of human acts to happiness, and, indeed, to the happiness of the community: for the happiness of the community exceeds the good of one man, who is only a part of the community.

 

By one who has charge of the community—law is an ordinance designed for the common good. Now the establishing of an order or disposition for the attainment of the common good is the function of the community, or of a public person charged with the care of the community, for, in all matters, the directing of anything to the end is the concern of him who is charged with the care of the end.

 

Promulgated—promulgation, which is a condition that is absolutely required for the validity, i.e., the binding force, of a law, is the public notice or intimation of the law, not the knowledge of it. For it is the promulgation of a law, not the knowledge of it, which makes a law binding on those subject to it.