Moral Theology Part 19

489. Excuses from the law are reduced to two, namely, ignorance and impossibility.

(a) Ignorance excuses from the guilt of non-observance, if it is inculpable (see 24 sqq.). The question now is whether or not and when it excuses from legal consequences, such as invalidity, penalty, reservation of sin, etc.

(b) Impossibility excuses from both obligation and guilt.

490. Ignorance of ecclesiastical law or of a penalty attached to the law has the following effects determined in the law: (a) No kind of ignorance excuses from irritating or inhabilitating laws, unless the contrary is expressly provided for in the law itself (Canon 16, 1).

Thus a person who contracts marriage, while ignorant that he and the other person are first cousins, is invalidly married.

(b) Affected ignorance of ecclesiastical law or of the penalty alone does not excuse from any penalties _latae sententiae_ (Canon 2229, 1).

(c) If the law contains the following words: _praesumpserit, ausus fuerit, scienter, studiose, temerarie, consulto egerit_, or others similar to them which require full knowledge and deliberation, any diminution of imputability on the part of either the intellect or the will exempts the delinquent from penalties _latae sententiae_ (Canon 2229, 2). (d) If the law does not contain such words, cra.s.s or supine ignorance of the law or even of only the penalty does not exempt from any penalty _latae sententiae_; ignorance that is not cra.s.s or supine exempts from medicinal penalties, but not from vindicative penalties _latae sententiae_ (Canon 2229, 3, 1).

491. Other specific determinations of the law include: (a) Inculpable ignorance of the law itself excludes moral imputability (Canon 2202, 1); actual inculpable inadvertence or error in regard to the law has the same effect (Canon 2202, 3). (b) Culpable ignorance, or culpable inadvertence, or error concerning the law or concerning the fact diminish imputability more or less in proportion to the culpability of the ignorance (Canon 2202, 1). (c) If the ignorance, even inculpable, affects only the fact of the existence of the penalty, it does not exclude imputability of the delict, but it does diminish it (Canon 2202, 2).

492. Absolute or physical impossibility (i.e., the want of the power or of the means of complying with a law), of course, excuses from its observance; for no one is bound to what is impossible. This applies to divine law, and hence much more to human law. Example: He who is unable to leave the house is not obliged to go to Ma.s.s.

493. Moral impossibility--that is, the inability to comply with the law without extraordinary labor, or the imminent danger of losing a notable good or of incurring a great evil--does not excuse from the observance of ecclesiastical law when this law receives through circ.u.mstances the added force of the negative law of nature. This happens when the evil that will result through the observance of the law bears no proportion to the evil that will result from its violation, the former being private or temporal or human, the latter public or spiritual or divine; for the law of nature forbids that the common welfare, or the salvation of a soul, or the honor of G.o.d be sacrificed for the benefit of an individual, or for the life of the body, or for the welfare of a creature. Example: The command to abstain from meat on Friday obliges, if one has been ordered to violate it as a sign of contempt of G.o.d or of religion, even though death is threatened for refusal.

494. Moral impossibility excuses from the observance of a human law in the following cases:

(a) One is excused when a considerable loss in health, reputation, spiritual advantage, property, etc., or a grave inconvenience will result from observing a law which is not a prohibition of nature in the sense of the previous paragraph; for the legislator cannot impose obligations that are needlessly heavy, and hence positive law does not oblige in case of such moral impossibility. Example: Our Lord reproved the inhuman rigor of the Pharisees, who insisted that their regulations must be observed, whatever the difficulty or cost.

(b) One is excused when a lower or less urgent law is in conflict with a law that is higher or more urgent. In such a case the greater obligation prevails, and the lesser obligation disappears. Examples: The divine laws that one must preserve one's life or administer Baptism to a dying person prevail over the human law of attendance at church.

The less urgent law of fasting yields to the more urgent law of devoting oneself to duties required by one's state of life, if there is a conflict between the two laws.

495. The loss, evil or inconvenience that const.i.tutes moral impossibility with respect to a law, must bear a proportion to the law itself; and hence the higher or the more imperative the law, the greater must be the reason that suffices to excuse from it.

496. Only a learned and prudent man can determine whether moral impossibility exists with reference to a particular case, and hence it would be dangerous for those who are not theologians to decide, either for themselves or for others. The points that have to be considered in judging are: (a) whether or not the difficulty is of a gravity proportionate to the importance of the law (e.g., a graver reason is required to excuse from a law that obliges under mortal sin than to excuse from a law that binds under light sin); (b) whether or not the difficulty is grave in relation to the person concerned (e.g., an obligation that is easy for a healthy person may be very difficult for one who is infirm).

497. It is never lawful to bring about either physical or moral impossibility of observing a law, if this be done with the sole or princ.i.p.al purpose of escaping one's duty. Example: To go away on Sat.u.r.day in order to avoid Ma.s.s on Sunday.

498. It is lawful to cause impossibility of observing a law, if there be some sufficient reason for doing this; for it is lawful to do something from which two effects, one good and the other bad, result, if the good effect is the one intended, and there is a sufficient reason for permitting the evil effect (102 sqq.). Example: It is sometimes lawful to do some extra work that is very useful, even if the labor makes one unable to observe a fast.

499. The sufficient reason spoken of in the last paragraph is one that is proportionate to the urgency and importance of the command and to the frequency of the non-observance. Examples: A greater reason is required to take up some work which will make it impossible to keep the fast, if this be done on the fast day itself, than if it be done the day before. A far greater reason is required to take up some work that makes the observance of the fast impossible, if this happens frequently or habitually, than if it happens only once or twice.

500. Cessation of Law.--A law ceases in two ways.

(a) It ceases from without (i.e., from the act of the legislator), when he abolishes it, by total or partial revocation (abrogation, derogation), or by the inst.i.tution of a new law directly contrary to it (obrogation). In the new Code of Canon Law there are many instances of revocation or obrogation of older legislation (see Canons 22, 23), as in the matter of censures and matrimonial impediments. Examples: In the diocese of X a minor feast was made a holyday of obligation. This law was abrogated, if later on it was decreed that neither the prohibition against servile works nor the precept of hearing Ma.s.s was obligatory for that feast; it was derogated from, if later it was decreed that servile works were permitted, but Ma.s.s was obligatory for that day; it was obrogated, if a later law included the minor feast in a list of special days of devotion for which the hearing of Ma.s.s was recommended.

(b) A law ceases from within (i.e., of itself), when through change of conditions the purpose for which it was made no longer exists, or is no longer served by the law.

501. The purpose for which a law was made ceases to be served by the law in two cases.

(a) A law no longer serves its purpose, if, from having been a benefit, it has become a detriment, inasmuch as its observance now would be wicked, or impossible, or too burdensome. In this case the law ceases, since it is now contrary to the supreme law that the common welfare be promoted. Example: A particular law forbade the use of fat or grease in the preparation of food on days of abstinence. Later, it became impossible to procure the subst.i.tutes previously used.

(b) A law no longer serves its purpose, if, from having been useful, it has become useless, inasmuch as it is no longer necessary for the end intended by the lawgiver. In this case the law ceases, for regulations should not be imposed needlessly. Example: The Council of Jerusalem made a law that the faithful should abstain from using as food animals that had been strangled (Acts, xv. 20). The purpose of the law was to avoid offense to the Jewish converts, who at that time formed a large part of the Christian community and who had a religious abhorrence for such food. But shortly afterwards, the Gentile element having become stronger in the Church, no attention was paid to ceremonial rules of Judaism.

502. A law ceases to serve its purpose also as follows:

(a) The law becomes harmful or useless with reference to the purpose of the lawgiver generally and permanently, if the changed conditions affect the whole community or the great majority, and are lasting. In this case the law ceases; for, since it is made for the community as a whole and as a lasting ordinance, it cannot endure, if it becomes permanently unserviceable to the community. Examples are given in the previous paragraph.

(b) The law becomes harmful or useless with reference to the lawgiver's purpose privately or temporarily, if the harm or uselessness affects only individuals, or is not lasting. In this case the law continues to be an instrument of public welfare, or is only momentarily deprived of its beneficial character. Hence it endures; but for temporary inconvenience to the public a remedy is had in suspension of the law, for inconvenience to individuals in dispensation. Example: If the use of fats or grease were forbidden on days of abstinence, and if for a time only it were impossible to obtain the subst.i.tutes for the preparation of the food, the law would not cease, but would be suspended until such time as subst.i.tutes could be obtained.

503. The inconvenience caused to individuals from the fact that a law does not serve its purpose in a case before them, does not always justify the use of _epieikeia_.

(a) If the observance of the law would be detrimental to the purpose intended by the lawgiver, _epieikeia_ might be used; for the lawgiver does not intend that his law should be an obstacle to what he has in view as its end. Example: Caius needs to read a book placed on the Index in order to defend the Faith against attacks, but he is unable to request the general faculty to read forbidden works. Obedience to the law in this case would defeat the purpose of the law, which is the protection of faith, and hence Caius may use epieikeia.

(b) If the observance of the law would be unnecessary, but not detrimental as regards the purpose of the lawgiver, _epieikeia_ may not be used; else the law would lose its force through the judgments of individuals in their own favor, and the common welfare would suffer.

Examples: t.i.tus has an opportunity to read a book placed on the Index, but has not the time to apply for permission. The work was condemned as dangerous to faith; but t.i.tus is strong in faith, and wishes only to study the literary qualities of the writer. Semp.r.o.nius, a parish priest, is requested to officiate at a marriage immediately, without proclaiming the banns or seeking a dispensation from proclamation. The purpose of the law of banns is that impediments may be detected and invalid marriages avoided, and Semp.r.o.nius is absolutely certain that there is no impediment in the case before him. t.i.tus and Semp.r.o.nius must observe the law, and the same must be said as regards every actual case in which there is the possibility of self-deception and peril to the common good. The theoretical case, in which neither of these inconveniences would be present, need not be considered.

504. The purpose of the law ceases to exist as follows:

(a) adequately, when all the reasons on account of which it was made are no longer in existence; in such a case the law itself ceases, for the lawgiver is not considered as intending to oblige when the reason for obligation has ceased. Example: If the bishop orders prayers to be said for rain, the prayers cease to be obligatory when rain has come;

(b) inadequately, when the reason for the law has ceased partially, but not entirely. In such a case the law does not cease, for it still remains useful. Example: If the bishop orders prayers for peace and rain, the prayers are obligatory until both requests have been obtained.

505. A law ceases, therefore, in greater or less degree, according to circ.u.mstances. (a) It ceases entirely or partially, according as it is revoked or as it becomes useless as to all its provisions, or only as to one or more of them; (b) it ceases permanently or temporarily, according as the revocation or cessation is only for a time, or for good.

506. Custom.--In Canon Law custom can interpret, abrogate or introduce law, provided: (a) it has the qualities of legitimate custom, and (b) its existence is proved juridically, or is notorious.

507. According to their extension, customs are of various kinds. (a) Universal customs are those that prevail in the entire Church; (b) particular customs are those that are confined to a territorial portion of the Church (e.g., a province of the Church or of an Order); (c) special customs are those that are followed in societies that are smaller, but capable of having their own laws (e.g., independent monasteries); (d) most special customs are those observed by individuals, or by communities not capable of having their own legislation (e.g., parishes). At the most, customs of this last cla.s.s have only the force of privilege (Canon 26).

508. Custom is formed as follows. (a) As to origin, it arises from the practice of the people, when this practice is followed with the purpose of making or unmaking a law. Hence, the habitual way of acting of an individual, even if he be the superior, does not give rise to a custom.

By "people" here is meant a community capable of having its own law (Canon 26). (b) As to legal force, custom arises solely from the consent of the Pope or other prelate, when this consent is expressed by the law or lawgiver, or tacitly admitted by him. Hence, a custom not approved by the superior has no legal force (Canon 25).

509. A custom can introduce or abrogate any kind of ecclesiastical law or other custom--penal, prohibitive, irritant--if it is reasonable and has lasted the prescribed time (Canons 27, 28). Examples: A law that forbids contrary customs can be abrogated, according to the Code, by such customs when they are immemorial, or a century old (Canon 27, 1). The impediment of disparity of wors.h.i.+p became diriment through custom; it was custom that introduced the obligation of the Divine Office, and that mitigated the early law of fast.

510. A custom expressly disapproved of in law is not reasonable or legitimate, and cannot derogate from an existing law, nor establish a new law (Canons 27, 28).

511. The time prescribed by the Code of Canon Law for the acquisition of legal force by customs that have not the personal consent of the lawgiver is as follows: (a) forty continuous and complete years are required to unmake an ordinary law; one hundred years to unmake a law that forbids future contrary custom (Canon 27, 1); (b) forty continuous and complete years are likewise required to make a new law (Canon 28).

512. The effect of the Code on customs previously existing was considered above under 421.

513. Like the written law, custom ceases: (a) from within, when its purpose has ceased entirely; (b) from without, when it is abrogated by desuetude, or by a contrary law or custom (Canon 30).

514. Laws in a Wide Sense.--In addition to laws strictly so-called, there are laws in a wide sense, commands or provisions made by ecclesiastical superiors that have not all the conditions given above (see 285) for law. Such are: (a) precepts, which differ from law, because they are given not to the community or permanently, but to individuals or temporarily; (b) rescripts, which are given with regard to particular cases and without the solemnity of law; (c) privileges, which are not obligatory; (d) dispensations, which are relaxations of law granted to individuals.

515. A precept is a command given to individuals, or for an individual case, by a competent superior.

(a) It is a command obliging in conscience, and so differs from counsel, desire, exhortation.

(b) It is given to individuals, and thus differs from law, which has the character of universality and stability. A precept may be imposed on a community, but even then it is particular, as being given only for an individual case or for a certain length of time--for a month or a year, or during the lifetime of the superior.

(c) It is given by a competent superior. Even here precept differs from law, since laws can be made only by one who has jurisdictional or public authority (see above, 285), while precepts may be given also by those who have only dominative or private authority (as parents, heads of families, husbands, employers, abbesses). In canonical matters precepts may be given by religious superiors, parish priests, rectors of seminaries, and for the court of conscience by the confessor.

516. Precept is similar to law: (a) as to its object, which must be just, good, and possible of observance; (b) as to its binding force, since it can be imposed even on those who are unwilling.

517. Precepts are personal (i.e., they affect the person to whom they are given wherever he may be), unless they are given as territorial (Canon 24). Hence: (a) a precept given by one who has no territorial authority (e.g., a religious superior) is personal; (b) a precept given by the Pope, whose authority includes every territory, is also personal; (c) a precept given by the bishop is personal, if given to an individual; it is personal or territorial if given to a community, according to the nature of the case or the wording of the precept.

Example: The precept not to go to theatres during a journey, imposed by a bishop under pain of suspension, obliges everywhere, both as to fault and as to penalty.