Moral Theology Part 17

437. With regard to abode, four cla.s.ses of persons are distinguished in Canon Law (Canon 91): (a) an inhabitant, who is one that has a domicile in a place and is present there; (b) a resident, who is one that has a quasi-domicile in a place and is present there; (c) a stranger, who is one that is outside the places of his domicile and quasi-domicile; (d) a _vagus_ or homeless person, who is one that has no domicile or quasi-domicile anywhere.

438. The rules as regards those who are not strangers are: (a) inhabitants and residents are subject to the diocesan, provincial, and other particular laws of their territory (Canon 13, 2); (b) the homeless are subject to the local laws of the territory where they are present (Canon 14, 2).

439. The rules for strangers with reference to general laws (Canon 14, 1, n. 3) are; (a) a stranger is obliged to follow these laws, if they are observed in the place where he is, even though they are not in force in the place of his domicile or quasi-domicile; (b) a stranger is not obliged to observe general laws, if they are not in force where he is, even though they are in force in the place of his domicile or quasi-domicile. Thus, the general law of abstinence on Friday does not oblige one who is travelling in a place where the law has been suspended, even though he would be obliged by it at home. The traveller would do better, however, to keep to the practice of his home.

440. The rules for strangers with regard to the particular laws of their own domicile or quasi-domicile (Canon 14, 1, n. 1) are; (a) they are obliged in two cases--first, when those laws are not territorial but personal and obligatory on them everywhere (as is the case with the statutes of religious superiors), and secondly, when the violation of a territorial law would be harmful in its own territory (as when by fiction of law one must be considered as present on account of the law of residence); (b) they are not obliged in other cases.

Thus, if one is travelling on a feast-day that is a diocesan holyday in one's home diocese, but not in the diocese where one is, one is not obliged to hear Ma.s.s.

441. The following are the rules for strangers with regard to the particular laws of the place where they are: (a) they are obliged in two cases--first, when natural law itself requires that a territorial law be observed by all, and secondly, when the Church includes strangers among those who are subject to a territorial law; (b) they are not obliged in other cases. Thus, if a person is travelling on a feast-day that is observed as a holyday of obligation both in his home diocese and in the diocese where he is, but not as a general holyday of the Church, he is not obliged to hear Ma.s.s; for the law of his home diocese does not bind him, since he is out of its territory, and the law of the diocese where he is does not bind him, since he is not a subject of that law.

442. The natural law requires that strangers should conform themselves to local laws in the following cases:

(a) when non-observance would be a cause of scandal, which the natural law commands one to avoid. In this sense we understand the rule of St.

Ambrose: "When you are at Rome, do as the Romans do." Hence, if a stranger would cause real scandal by eating meat on a local day of abstinence, he would be obliged to abstain from it;

(b) when a local law deals with the solemnities required for validity of contracts (Canon 14, 1, n. 2). If strangers were not obliged by laws of this kind, they could take advantage of the inhabitants, a thing that is contrary to natural justice. Thus, "the place rules the act";

(c) when the local law has for its object the maintenance of public order (Canon 14, 1, 11. 2); for the natural law demands that public safety be guarded. Hence, a stranger who commits a crime is subject to the penalties of the local law (Canon 1566).

443. Examples of territorial laws that oblige even strangers according to the precept of the Church are the laws that require all, even strangers, to follow the Calendar of the Church where they celebrate Ma.s.s, and to say the _collect imperat_ prescribed by the bishop of the local diocese.

444. The rules given for strangers can be applied also to those who are in places exempt from local jurisdiction (e.g., in the monasteries of exempt regulars). The exempt are those who by fiction of law are held to be outside the territory of every diocese, and are subject, not to the local bishop, but directly to the Pope (Canon 515).

445. There are various cases, however, in which exempt religious are subject to the territorial laws of the diocese where they are. Thus: (a) when they accept parishes in a diocese, they are subject to the Ordinary in those matters that pertain to the parishes; (b) when the common good or the avoidance of scandal requires it, they should conform to a diocesan law.

446. Those who have a personal privilege can use it anywhere, for a personal privilege, like a personal precept, follows the person, not the territory.

447. Promulgation.--Church laws are promulgated as follows: (a) the laws of the Holy See are promulgated by publication in the official periodical, _Acta Apostolic Sedis_. They become effective three months from the date of publication, unless from the nature of the case they oblige at once, or it is otherwise provided in the law itself (Canon 9); (b) the laws of a bishop are promulgated in the manner he decides, generally by publication in the official periodical of the diocese.

They become effective as soon as published, unless it is otherwise provided in the law itself (Canon 335, 2).

448. When a law has been promulgated and become known, if it begins to be observed, it is said to be accepted; if it is not observed, it is said to be not accepted. This acceptance is not essential to law.

Hence: (a) the observance of a law by the people is not necessary for the obligatory force of the law, for otherwise the lawgiver would be without real authority; (b) the approval of ecclesiastical laws by the State is not necessary for their validity, since Church and State are distinct and independent societies within the proper sphere of each.

449. A law that has been promulgated may fail to obtain force in the following ways: (a) through contrary custom, already existing and not excluded by the law, or then arising to abrogate the law (see 391 Sqq.); (b) through appeal entered with the lawgiver. Thus, if a bishop deems a law of the Pope unsuited to his diocese, he explains the reasons to the Holy See, and pending the answer it is considered that the lawgiver does not wish the law to oblige.

450. Irritant Laws. Laws Based on Presumption.--There are two cla.s.ses of human laws that deserve particular mention on account of special difficulties regarding them: (a) irritant laws, which would seem to be unjust, since they declare null what according to natural law would be valid; (b) laws based on presumption, which would seem to be of uncertain force, since presumptions are often contrary to fact.

451. An irritant or inhabilitating law is one that expressly or equivalently declares that certain defects make an act void or voidable, or a person incapable. Such laws are just, even when made by human authority, since it is the common good that makes them necessary, and the natural law itself requires that the common good be promoted.

452. Irritant laws are of various kinds.

(a) They are morally or juridically irritant, according as that which is taken from the irritated act is either the natural value it has in conscience, or the positive value it derives from the law. Hence, an act may be legally null (i.e., have no value that the law recognizes or protects) and at the same time morally valid (i.e., of just as much force in conscience as though no irritant law existed).

(b) Irritant laws are merely irritant or irritant and prohibitive, according as they make an act invalid but not illicit, or both invalid and illicit. Thus, a law that requires certain formalities for making a will invalidates the act of writing an informal will, but does not make it an offense; but the church law of diriment impediments makes a marriage contracted with one of these impediments both null and sinful.

(c) Irritant laws are merely irritant or irritant and penal, according as the legislator does not or does intend them as punishments. For example, the law of clandestinity is merely irritant; the law regarding the impediment of crime is probably both irritant and penal.

453. Laws that are merely irritant do not oblige one in conscience to omit the act, but only to suffer the effect of irritation; but laws that are both irritant and prohibitive oblige one in conscience to omit the act. Example: In itself, it is not unlawful to make an informal will, but it is unlawful to marry with a diriment impediment.

454. As to the time when irritant laws obtain their effect, the following points are important.

(a) Ecclesiastical voiding laws oblige at once in conscience, although like other laws of the Church they are not retroactive, unless the contrary is provided, and they do not oblige in case of a doubt concerning the law. Example: If espousals are made without the canonical formalities, there is no duty to live up to them as such, either in conscience or before the law.

(b) Civil voiding laws are generally only civilly irritant, for as a rule external means are sufficient for the purpose of those laws; thus, they produce civil irritation at once, but moral irritation only after p.r.o.nouncement by the courts. Hence, after a judicial sentence the voided act becomes such morally, since the decision is founded on a presumption of common danger (see below, 459). Examples: One who has received money through a will which he knows to be informal (i.e., legally invalid), may retain possession until the civil authority declares that he has no rights to the money. But, on the other hand, one who has been disinherited through a will naturally good, but not made in due form, has the right to contest, if we except the case of pious bequests (see Vol. II).

455. Laws that make an act voidable or rescindable do not irritate before declaration of nullity by a judge. Hence, an act that is rescindable according to law retains its natural force until the court has decided against it. Example: Acts that were done under the influence of grave and unjust fear, or that were induced through deception, are held as valid until declared null by a judge.

456. As to the effects of ignorance on acts irritated by law, the Code states that ignorance of irritating (invalidating) and inhabilitating (disqualifying) laws does not excuse from their observance, unless the law expressly states otherwise (Canon 16, 1). Moralists discuss the influence of ignorance (as well as force or fear) on such acts as follows: (a) if the law is irritant and not penal, it has its effect, in spite of ignorance, oversight, etc.; for this the common good requires. Example: One who marries his cousin in good faith, being invincibly ignorant that it is against the law, contracts invalidly; (b) if the law is irritant and penal, the irritation being decreed solely as a punishment, ignorance, oversight, etc., sufficient to excuse from fault, excuse also from the penalty of irritation; for penalty presupposes fault. Before the law, however, ignorance and error as to law or penalties are not presumed but must be proved.

(Nevertheless, it must be noted that according to some authors no penalty is necessarily or primarily intended in ecclesiastical irritating and inhabilitating laws. Though punishment actually results from the matrimonial impediment of crime, for example, the impediment as such primarily is a personal disqualification intended to protect the dignity of the sacrament and good morals. Ignorance, then, does not excuse from it. Some authors maintain that this is true of all ecclesiastical disqualifying laws.)

457. Generally speaking, _epieikeia_ may not be used in the interpretation of irritating and inhabilitating laws. Since they transcend the individual welfare, they demand uniform observance of all subject to them. Some authors permit the use of _epieikeia_, however, in particular cases in which the law itself aims to protect the individual, whereas its observance would tend rather to harm the individual or at times even the interests of the community.

Accordingly, it seems probable that an irritant law may cease in case of impossibility or of a most grave inconvenience that is common.

Example: If in a pagan country Christians were so few that they could marry only infidels, and if distance or other circ.u.mstances made it impossible to seek a dispensation, the diriment impediment of disparity of wors.h.i.+p would seem to cease for those Christians.

458. Some authors hold that an irritant law may also cease on account of impossibility, or of a most grave inconvenience that is only private; but this opinion cannot be deemed certain. An example of private inconvenience is the case of an invalidly married person who is near to death and unable to seek the dispensation from the impediment that has made the marriage null.

459. A law based on presumption is one in which the lawgiver rules for certain cases according to what experience shows in their regard--viz., that such cases are generally dangerous, or indicative of a particular fact. These laws are not of uncertain force, for the cases in which they cease to oblige are few and definite.

460. When a law is based on a presumption of common danger and that danger does not exist in a particular instance, the law nevertheless obliges (Canon 21); for the end of the law is the common good, and if it ceased for an individual whenever its presumption of danger was not true in his case, everyone could persuade himself that the law did not apply to him, and thus the common good would be defeated. Examples: The law against the reading of irreligious books is based on the presumption of common danger of sin, the law against clandestine marriages on the presumption of common danger of fraud; hence, they oblige even in the particular instances where these dangers are absent.

Examples of laws based on the presumption of common danger can be found in Canons 199; 409, 1; 420; 422; 1022; 1028; 1114; 1116; 1138; 1396; 1398.

461. When a law is based on the presumption of a particular fact that usually happens in the cases with which the law is concerned, and the fact in an individual instance did not happen, does the law oblige?

(a) In conscience the law does not oblige of itself, because presumptions must yield to the truth; but it may oblige accidentally, if non-observance would cause great public or private harm. Example: The law presumes that a person born and brought up among Catholics has been baptized, and is therefore subject to the church laws. But if, in fact, the person was never baptized, he is not subject to those laws, as long as he remains unbaptized, unless there be some accidental necessity of keeping them, such as the danger of scandal.

(b) Before the public authority the law in question does oblige until the non-existence of the fact presumed by the law has been proved in the manner required by law. Example: When parties contract marriage according to the form prescribed by the Church, the presumption is that the contract was valid, and, as long as that presumption is not overcome, the Church will not sanction a new marriage by either of the parties. But if it can be proved in court that threats or violence produced lack of consent, the obligation not to contract a new marriage will terminate before the law.

462. Fulfillment of Law.--With reference to the manner of fulfilling a law there are a number of questions to be considered: (a) as to the external acts, whether or not one can fulfill the law for another, whether or not the omission of some slight detail renders compliance insufficient, whether or not he who cannot fulfill the whole law is bound to fulfill a part of it, whether or not several obligations can be satisfied at the same time or by the same act, etc.; (b) as to the internal acts, whether or not one must have the intention of meeting the wishes of the lawgiver, whether or not one must be in the state of grace, etc.

463. Personal fulfillment is not always necessary; for an affirmative law requires either that some thing be given, or that some personal act be performed. (a) When the law requires that some thing be given (e.g., that taxes be paid), the obligation can be satisfied through another, since a thing can be transferred from one person to another, who agrees at least interpretatively; (b) when the law requires that a personal act be performed (e.g., that Ma.s.s be heard on Sunday), the obligation cannot be satisfied through another, for actions cannot be transferred from one to another.

464. Minute fulfillment is not always necessary; for sometimes the minor details of the fulfillment of a law are expressly prescribed, sometimes they are not.

(a) If these details are required by the law itself or by the nature of the case, the law is not satisfied if they are neglected. Example: Friday abstinence ends exactly at midnight, and hence to eat meat even one minute before midnight is to break that abstinence.

(b) If the law does not prescribe minute details, these are not required for the fulfillment of the obligation; for laws should not be unduly burdensome. Example: One who is a few minutes late for Ma.s.s does not miss Ma.s.s, if he is present for the essential parts of the Ma.s.s.

465. Partial fulfillment is required of him who cannot make complete fulfillment, only when the part is commanded for its own sake; for that which is commanded by a law is considered by the lawgiver as either an indivisible unit, or as a whole composed of parts that have singly an independent moral value and obligation.

(a) If the thing commanded is morally an indivisible unit (e.g., a pilgrimage to a shrine), he who is not able to fulfill the whole law is bound to nothing. Example: One who has made a vow to go on pilgrimage to a distant sanctuary, is not bound to go part of the way, if he is unable to make the entire journey.

(b) If the thing commanded has parts that contribute to the end of the law, he who is able to fulfill only one or more such parts is obliged according to his ability; if it is certain that he can perform even a part, he is bound to that; if it is not certain that he can perform even a part, it would seem that generally he is excused from all.

Examples: A cleric who can say some but not all the Hours of his Office, is obliged to say what he can. A person who can certainly abstain, but who cannot fast, is bound during Lent to abstain.

466. Simultaneous fulfillment by one act of several obligations is lawful, if the obligations differ only materially. They are said to differ only materially, if the motive of the legislator in giving different commands about the same thing is the same in each instance; they differ formally, if the legislator has a different motive in each instance. The motive is recognized either from the express declaration of the lawgiver, or from interpretation given through authority or custom.

(a) When two commands differ only materially, it can be presumed that the legislator is not unwilling that they be fulfilled by one and the same act, unless it is clear that he wishes them to be fulfilled by distinct acts. Example: If one falls sick at Easter time and receives the Viatic.u.m, it is not necessary for him to receive Communion again in order to make his Easter duty; for the divine law of Viatic.u.m and the church law of Easter Communion have the same motive, and hence can be fulfilled by one and the same Communion.