CIVIL LAW

The Catechism of the Catholic Church has relatively little to say about civil law. Of the various types of law mentioned – eternal law, natural law, revealed or divine law, civil law, and ecclesiastical law (cf. CCC 1952) – civil law receives perhaps the sketchiest explicit treatment. Nevertheless, the Catechism’s sections on the moral law and civil authority do provide an overview of the Church’s teaching on this important subject.

The Catechism emphasizes the connection between the natural moral law, or “the light of understanding placed in us by God, through [which] we know what we must do and what we must avoid . . . [St. Thomas Aquinas, Dec. praec. I]” (1955) and civil law (cf. CCC 1959). Aquinas, in the “Treatise on Law” of the Summa Theologiae, begins his consideration of human law by asking why, if men have an innate inclination and sense of obligation to do the good, we need civil law at all: “Was it useful for laws to be framed by men?”

Need for Civil Law • The answer is of course yes. While human beings have a natural capacity to acquire virtue, they need guidance and education from others in order to do so. This character formation is received especially in the family, by means of parental admonition, and also in the political community, through the various laws and customs. Moreover, given the fallen nature of man, civil law is indispensable because it is backed up by force: Those not inclined to obey for the sake of the good itself or to follow the advice of a respected parent or friend may at least do so from fear of punishment. And if they do disobey, the penalty imposed provides an opportunity for correction of the offender and restores peace and order to the community. “Therefore, in order that man might have peace and virtue, it was necessary for laws to be framed, for, as the Philosopher [Aristotle] says, ‘a man is the most noble of animals if he be perfect in virtue, so is he the lowest of all if he be severed from law and justice’; because man can use his reason to devise means of satisfying his lusts and evil passions, which other animals are unable to do” (Summa Theologiae, I-II, 95, 1; cf. Aristotle, Politics I, 2).

Civil law is needed to coordinate and direct the many and varied activities of the members of a particular political community to their common good. This goal cannot be achieved without “the recognition and defense of fundamental rights, and the promotion of peace and of public morality. The real purpose of civil law is to guarantee an ordered social coexistence in true justice” (Pope John Paul II, encyclical The Gospel of Life, Evangelium Vitae, 71 [1995]). As laws must be made and promulgated by the competent authority of a particular country, they will vary in origin and character among different forms of government and specific regimes. Hence civil law is the properly political form of law as Aquinas understands it: a rule of reason issued for the common good, made and promulgated by whoever has the responsibility to care for the community.

Civil law is derived from the natural moral law in one of two general ways: by way of “conclusion” or by way of “determination” or specification (CCC 1959; cf. Summa Theologiae, I-II, 95, 2). An example of the first sort would be a statute prohibiting homicide, a direct conclusion drawn from the natural law precept that innocent persons are not to be harmed. The second sort of relation may be illustrated by traffic laws in the late twentieth century, appropriate to protecting human life in societies where automobiles exist and are widely used – or a law reflecting the judgment that the appropriate punishment for reckless driving is a fine of such-and-such an amount.

Limits of Civil Law • While natural moral law and civil law are thus intimately related, the scope and aim of the latter is considerably more restricted. It would be a serious mistake to conclude that civil law should prohibit and punish all vicious acts proscribed by the natural law. Aquinas argues that “human law is framed for a number of people, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained . . . murder, theft and suchlike” (Summa Theologiae, I-II, 96, 2; cf. ad 1-3).

What is most critical to grasp in this connection is that human law is not an autonomous measure of right and wrong, legitimate so long as it expresses majority opinion codified by means of agreed-upon legislative procedures (this is roughly what is taught by the legal philosophy called positivism). Rather, it is a “measured measure,” a valid standard only insofar as it conforms to the basic precepts of natural law. On this point, Aquinas cites St. Augustine, who writes in On the Free Choice of the Will (I, 5) that “what is not just seems to be no law at all.” Aquinas goes on to comment that “the force of a law depends on the extent of its justice. Now in human affairs a thing is said to be just, from being right, according to the rule of reason. But the first rule of reason is the law of nature” (Summa Theologiae, I-II, 95, 2).

In The Gospel of Life, Evangelium Vitae, Pope John Paul II reaffirms this connection as an integral part of the Church’s teaching: “The doctrine on the necessary conformity of civil law with the moral law is in continuity with the whole tradition of the Church. This is clear once more from John XXIII’s Encyclical [Pacem in Terris, II]: ‘Authority is a postulate of the moral order and derives from God. Consequently, laws and decrees enacted in contravention of the moral order, and hence of the divine will, can have no binding force in conscience. . . ; indeed, the passing of such laws undermines the very nature of authority and results in shameful abuse.’ This is the clear teaching of Saint Thomas Aquinas, who writes that ‘human law is law inasmuch as it is in conformity with right reason and thus derives from the eternal law. But when a law is contrary to reason, it is called an unjust law; but in this case it ceases to be a law and becomes instead an act of violence’ [Summa Theologiae, I-II, 93, 3, ad 2]. And again: ‘Every law made by man can be called a law insofar as it derives from the natural law. But if it is somehow opposed to the natural law, then it is not really a law, but rather a corruption of the law’ [Summa Theologiae, I-II, 95, 2]” (72).

Legislators must therefore strive to enact laws that are both in conformity with the moral law and appropriate to the concrete character and circumstances of the people they are intended to govern. Legislators must be conscious of the tremendous formative or deformative force of law, especially fundamental or constitutional law and the regime on which it is based. The Catechism reminds us that scandal of the worst kind can be provoked by “laws and institutions, by fashion or opinion.” Hence, “they are guilty of scandal who establish laws or social structures leading to the decline of morals and the corruption of religious practice, or to ‘social conditions that, intentionally or not, make Christian conduct and obedience to the Commandments difficult and practically impossible’ [Pius XII, Discourse, June 1, 1941]” (CCC 2286).

On their side, citizens, too, have a responsibility to foster the common good, in part by working for the enactment of truly beneficial civil laws. They have the duty to obey just laws, which bind in conscience, even at the cost of personal sacrifice. And as citizens, human beings, and Christians, they must refuse formal cooperation with evil, even when that evil is honored with the name of law.

See: Absolute Moral Norms; Authority; Citizenship; Civil Disobedience; Common Good; Legalism; Natural Law; Politics; Positivism; Relativism.

Suggested Readings: CCC 1897, 1902, 1904, 1950-1952, 1957, 1959, 1976-1979, 2188, 2273, 2286. Pius XI, On Atheistic Communism, Divini Redemptoris, III. John XXIII, Peace on Earth, Pacem in Terris, II. John Paul II, The Hundredth Year, Centesimus Annus, 44-46; The Splendor of Truth, Veritatis Splendor, 97-99; The Gospel of Life, Evangelium Vitae, 68-74. St. Thomas Aquinas, Summa Theologiae, I-II, 90-92, 95-97.

Mary M. Keys




Russell Shaw. Our Sunday Visitor's Encyclopedia of Catholic Doctrine. Copyright © 1997, Our Sunday Visitor.

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Last Updated: Sunday, April 01, 2001 03:24:19 PM