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BECAUSE man
is a rational creature he is under obligation, to seek the end of his being
by his own free choice, and to cooperate with the Creator in fulfilling the
purpose of his creation.
The whole of creation is under the governance of
God, Who works out in it His purpose.
That purpose is the Eternal Law.
The eternal law is the scheme or plan in the mind of God
when He created,
and by which He governs and judges His creation.
The concept of eternal law presupposes that the universe has a purpose and
a structure.
The sub-rational universe obeys this eternal law and conforms to this scheme
automatically.
The rational universe conforms to it of free volition, or by free volition
revolts from it, at those points where there is scope for freedom of choice.
For the rational universe, or at least that part of it that is man, is composite
of the rational and irrational;
man is at once spirit and matter.
As spirit
he has the power of choice;
as matter he is subjected inevitably to the eternal
law in the same way as beasts and stones.
He cannot escape from the law of
gravity or the law of the growth and decay of his body.
But as spirit or
reason he has choice and must make decisions of conduct.
In this respect he is subject to the Natural Law or law of his nature.
The natural law is the norm
and standard of the conduct that God demands from men.
It is the eternal law as that applies to man, directing his actions as a
free voluntary agent.
This natural law outlines the pattern of conduct by which man will attain
to his true end.
It is the urge of the natural being toward his natural end,
and toward that course of action which will bring him there.
It is the sum
of all the tendencies and appetites, duly ordered and related, which prompt
and impel him towards his own perfection.
The existence of the natural
law, though many deny it, may be inferred, once the presupposition is granted
that the universe is the work of an intelligent Creator.
Creation implies the existence of the eternal law,
for otherwise there would be no design in creation,
and no providence or divine government of the actual created universe.
The natural law is nothing other than the eternal law as it concerns men.
Again, creation implies an end and purpose.
That end is the glory of God;
irrational creatures promote that end by following
as they must the laws of nature, rational creatures by freely observing the
rules of conduct or moral laws imposed on them by the Creator for the maintenance
of morality and the good of the race.
These moral laws are the natural law.
Further, human experience suggests the existence
of the natural law.
There is deep rooted in the consciousness of every man an unshakable conviction
that one should do good and avoid evil, and that certain actions are intrinsically
good, others bad.
And conscience orders the doing of the one and abstention from the other,
and reinforces its order by an emotion of peace and harmony when it is obeyed,
and of discomfort when it is disobeyed.
The awareness of conscience and of
remorse is common to all men -
those who are without it are regarded as mentally
deranged -
and its presence is evidence of the existence of a moral law,
of an objective distinction between right and wrong, the perception of which
is innate in man, and whose content is wholly independent of and prior to
positive statute law.
Or, again, a survey of human history reveals that
there are certain rules of conduct upon which all branches of the human race
agree.
The researches of anthropology may seem greatly to narrow the extent
of these rules, and to suggest that all morality is completely relative.
But there remain certain universally agreed rules of conduct, e.g. that children
should honour their parents, and parents care for their children; that certain
marriages are "incestuous" and therefore forbidden; that one ought
to keep one's oath.
However often broken, these laws are not denied.
They
are agreed to be universally binding, and to derive their authority not from
kings or governments, or from reasons of expediency, but from the nature
of things itself.
They are the natural law.
The natural law, then, is the pattern of conduct laid down for men by the Creator, which they must follow if they would attain to their true end. It is perceptible by reason.
The Law of Nature, meaning thereby the Law which human Nature knoweth itself in reason universally bound unto, which also for that cause may be termed most fitly the Law of Reason;
this Law, I say, comprehendeth all those things which men by the light of this natural understanding evidently know, or at leastwise may know, to be beseeming or unbeseeming, virtuous or vicious, good or evil for them to do.
(Hooker, E.P. I, viii, 9).
The first and most general principles of this
natural law are immediately and intuitively known, being self-evident.
As
for example, "good must be done and evil avoided" or "a greater good is to be preferred before a lesser good".
No proof is properly to be asked or given for such principles, for they
need none.
As Hooker says,
The main principles of Reason are in themselves apparent.
For to make nothing evident of itself unto man's understanding were to take away all possibility of knowing anything. ...
In every kind of knowledge some such grounds there are, as that being proposed the mind doth presently embrace them as free from all possibility of error, clear and manifest without proof.
In which kind axioms or principles more general are such as this,
'that the greater good is to be chosen before the less'. ...
Axioms less general, yet so manifest that they need no further proof are such as these,
'God to be worshipped;
parents to be honoured;
others to be used by us as we ourselves would be by them'.
Such things, as soon as they are alleged, all men acknowledge to be good;
they require no proof or further discourse to be assured of their goodness.
(E.P. I, viii, 5).
From these broad general principles certain secondary
rules or conclusions may without great difficulty be inferred.
It is under
this heading of secondary rules that such precepts as the Ten Commandments
fall.
They are conclusions from and applications of the general principles
that it is right to worship God and to do to others as we would be done by.
But because an element of discursive reasoning is involved there is always
here possibility of error.
The error may arise, either because reason is
clouded and obscured by long custom which prevents men from considering afresh
and impartially the good or evil of a practice to which they have become
accustomed, or else men have lost sight of the truth about human nature and
therefore of its end and good, and proceed from false presuppositions.
For
these reasons the secondary principles of the natural law are in constant
need of restatement or reaffirmation.
For example, led astray by passion,
inured by familiarity and deceived by a false notion of human nature and
happiness, men may come to think fornication no evil.
It is then necessary
to reaffirm the truth that chastity is a precept of the natural law.
Such reaffirmations of the secondary content of the natural law are the
work of reason, aided by revelation.
Reason is prompted to undertake this
task by violated nature herself.
For violations of the natural law invoke
their own inevitable penalties and sanctions.
The miseries that they experience
teach men that natural law is somewhere being broken, and the content of
the law itself may be in some measure perceived by the results that follow
from certain kinds of actions.
The reason thus stimulated may further arrive
at the truth by a consideration of what human nature is and its relation
to the rest of creation.
Each individual man's being and urge to life shows
the right of self-defence and of bodily integrity to be inherent in all men.
The natural desire to propagate and the natural needs of children for maintenance
and protection teach the right and laws of marriage.
The natural desire for
social intercourse and friendship, the inclination for knowledge, the possession
of freewill and conscience teach the existence of a natural right to freedom
of conscience, of worship and of association (St. Thomas, S.T. I, ii, quaest.
xciv, art. 2).
Or again, a recognition, reinforced by Scripture, that man
though Lord of Creation has yet no absolute dominion over created things
- not even over his own body - but rules and possesses in trust from God,
asserts the duty of a reverent and responsible treatment of the natural world
and its resources, and of their employment in accordance with the uses and
purposes for which they would appear to exist.
Or again, man is a being possessed
of a spiritual element as well as a physical, he is self-conscious and responsible;
Scripture teaches that he is made in the image of God, and heir to an immortal
destiny, and that all men equally are the children of God.
From this must
be seen to follow the infinite dignity and value of each individual man,
not one of whom may properly be made a mere means to the welfare of others.
And from this follows a certain hierarchy of activities and values.
The knowledge of that which man is in reference unto himself, and other things in relation unto man, I may justly term the mother of all those principles, which are as it were edicts, statutes and decrees, in that Law of Nature, whereby human actions are framed.
First therefore having observed that the best things, where they are not hindered, do still produce the best operations ... when hereupon we come to observe in ourselves, of what excellency our souls are in comparison of our bodies, and the diviner part in relation unto the baser of our souls;
seeing that all these concur in producing human action, it cannot be well unless the chiefest do command and direct the rest.
The soul then ought to conduct the body, and the spirit of our minds the soul.
(Hooker, E.P. I, viii, 6).
The law of nature being the Law of God for men,
the pattern of conduct which He demands in accordance with the nature which
He has created, is binding upon all men and meets the need of all men.
For
it corresponds to their true nature.
The precepts of the natural law, therefore,
are immutable and admit of no exceptions or dispensations.
If an action is
truly perceived to be contrary to the natural law, it is wrong and always
wrong.
The natural law thus affords a valid norm and objective standard and
criterion of moral conduct.
But this is not to say that the application of
this norm to particular problems is easy or that we may solve ethical doubts
by a ready rule of thumb.
This is so for a number of reasons.
In the first place, apart from the most general
principles and perhaps the secondary conclusions, and apart from the revealed
law of God, the content of the law of nature is not easily perceived.
Man's
perception of the natural law is perverted and distorted by sin.
Per contra, obedience
to the natural law as it is now understood, brings of itself further enlightenment.
Where there is virtue there is a progressive realisation of God's will for
men.
Where there is vice, there is growing confusion and darkness.
"And even as they did not like to retain God in their knowledge,
God gave them over to a reprobate mind" (Romans i, 28).
Hence our perception of the
natural law needs to be constantly checked by reference to the Bible as the
revelation of God's will and of the truth about ourselves.
And hence we may
expect to derive deeper and clearer insights., and a refinement of the knowledge
of the natural law which we now possess.
Again, apart from this
possibility of clearer and fuller knowledge of the law derived from revelation
and from a purer insight into things and situations as they are, there is
often the very greatest difficulty in applying the natural law to a concrete
case because of the apparent conflict between its precepts.
A clear example
is provided in the difference of opinion between St. Thomas and St. Bonaventura.
A judge is bound by natural law to acquit an innocent man.
He is equally
bound to decide a case in accordance with the evidence.
But what if the judge
knows privately that the accused man is innocent, but the weight of the evidence
adduced in court establishes his guilt?
Aquinas held that the judge must
go by the evidence;
Bonaventura that he should ignore the evidence and acquit.
Or the same general precept may appear to enjoin two contrary actions.
The
precept "do as you would be done by" demands respect for other
people's property and the return to its owner of anything of his that he
has deposited with us.
The same precept requires that we do nothing that
shall lead directly to another's hurt.
What then if a man demands from us
the weapon he has left with us in order that with it he may murder his enemy?
It would not be difficult to multiply examples in which the precise ruling
of the natural law is not easily perceived, and when it is hard to determine
which is the greater good or the lesser evil.
But if we turn from the problems of the exact
application of the natural law and consider the precepts themselves, even
there we are not free from difficulty.
It is tempting to say of these precepts
that they are immutable and never admit of any exceptions;
that the actions
that they prescribe or forbid are always and necessarily right or wrong.
But if we do so we involve ourselves in the position of having to admit wherever
any two of them clash that whatever we do is bound to be wrong.
These precepts
are but generalised statements, designed to cover as wide a range of circumstances
as possible and so to approximate to immutability.
But they never quite reach
it, for it is not possible for the human mind to formulate a rule capable
of covering every conceivable set of circumstances.
And, in fact, we find
these rules undergoing frequent modification.
For example, the prohibition "thou
shalt not kill"
was early restricted to killing in certain circumstances, and these circumstances
have been progressively defined so as to come as near as possible to an accurate
description of what killing is always wrong.
The same may be said of "thou
shalt not steal", a word, which needs careful definition, so as to
include only those acts of taking another's property that are always wrong.
It may seem that there is little value in the
natural law as a guide to conduct, if its content is known with such difficulty
and what is known is subject to constant modification in the light of new
circumstances and conditions.
But it is easy to exaggerate the obscurity
and the difficulties.
There is a valid knowledge of the natural law obtainable
by the human reason, and reinforced and enlarged by revelation.
Moreover,
the general formulated rules and precepts of the natural law are normally
binding, the exceptions to them are for the most part rare, so that for practical
purposes they may be regarded as universally binding, for they do cover most
conditions.
As St. Thomas says,
"they are in most cases the same for all, -
all know them and all should do them;
but in a few cases they do not apply -
sometimes they ought not to be obeyed,
sometimes people are ignorant of them."
('est eadem apud omnes ut in pluribus,
et secundum rectitudinem et secundum notitiam;
sed ut in paucioribus potest deficere,
et quantum ad rectitudinem ...
et etiam quantum ad notitiam'.
S.T. I, 11, quaest. xciv, art.4, a).
For this we may claim fairly general agreement. Murder, theft,
adultery are everywhere recognized as wrong in general and in principle.
They are easily seen to be destructive of society and inimical to quiet,
peaceable and happy living.
They have, in fact, no proper place in the scheme
of things.
Denounce these practices, and men may resent it but will not dispute
it.
Demonstrate that this particular action proposed violates one of these
generally recognised precepts of the natural law, and you have sufficiently
demonstrated its wrongness, and it will be done with a bad conscience.
Whilst
there is a great need to-day for fresh hard thinking on the application of
the natural law to new conditions and circumstances, and for effort to elucidate
its content, there is an ever greater need for a clear and constant reaffirmation
of those precepts which are known and which are still easily applicable,
but from which men turn away to their own ruin, under the influence of selfish
passion, and to the flagrant violation of which their consciences are becoming
increasingly hardened.
There is much in the old statement of the natural
law that needs no revision.
The old rules of honesty and justice, of chastity
and neighbourliness, are as true and as binding as ever they were, and wholly
applicable to the circumstances in which most men find themselves.
They are
easily perceived by the common reason of man, and denied only by human perversity
and passion.
They are the law of God for man; they enjoin the only path by
which man can achieve his true end and final happiness;
they constitute a
clear, challenging and objective criterion of right and wrong, above and
aloof from the confusing and perplexing claims of mere expediency.
top
To the natural law the actions of states are also
properly subject. In this respect the natural law operates through and finds
its expression in the Jus Gentium or law of nations.
The jus gentium is
sometimes taken to mean both those laws that are universally recognised as
governing the conditions of human intercourse, as, for example, the rights
of private property or the sanctity of contracts, and the laws that govern
the relation of states with each other.
If this be so, the jus gentium is
clearly a mixture of natural law and of positive human law.
But the point
is disputed, and others maintain that it is distinct from the law of nature
in that it is not based directly on the necessities of human nature, as the
law of nature is;
and from positive human law, in that it is unwritten and
customary and developed as by a common instinct out of the necessities and
conveniences of intercourse between nations.
The dispute is not of very great importance.
For
even if the whole or part of the jus gentium be ascribed to positive
human law, it owes its validity and obligatoriness to the natural law;
its
content is, in the words of St. Thomas
(I, 11, quaest. xcv, art. 4), "conclusions, not very remote, from the principles of the natural law",
and from these
tacit and universal agreements it is not open to any state arbitrarily to
withdraw to suit its own convenience.
For the law of nature requires that
agreements be honoured, and frequent departures from these agreements, even
if they were made legitimately after due notice, would gravely disturb the
rights of others, and such disturbance would itself be contrary to the law
of nature.
The point is, that the content of the jus gentium, or at
any rate a great deal of it, even though it be embodied in part in written
treaties or conventions, does not derive its validity from those treaties
or conventions.
So that it may not be denounced at will by any of the contracting
parties, nor does it cease to be binding because in some quarters it is denied
and violated.
It derives its force either from the natural necessities of
human intercourse, or from those agreements that the collective wisdom of
the human race has found to be most convenient for the peaceful and fruitful
maintenance of such intercourse.
Which comes to very nearly the same thing.
Instances of such agreements are the freedom of the high seas, the inviolability
of ambassadors, respect for the white flag of truce, the mutual recognition
of sovereign independent states.
From any of these agreements it is a very
grave responsibility for any state to withdraw, nor can it justly do so without
adequate notice so that the rest of the world may be able to readjust its
practices to suit the new situation that would arise.
Yet there is no doubt
that such agreements may be altered or added to by mutual consent.
For example,
sovereign states may mutually surrender all or part of their sovereignty
to a higher authority;
states might come to an agreement to have no ambassadors,
or to accord them no privileges.
But there are other parts of the jus
gentium which are closer akin to the natural law, if not indeed part
of it, and from which in consequence it is never right for a state to depart.
Examples are the humane treatment of enemy wounded and prisoners, the abolition
of slavery, the protection of the life and property of resident aliens.
No
state would ever be justified in violating these laws whatever other states
or even the whole world might do, for they are rooted in the nature of man
as man.
Parts of the jus gentium are embodied in
International Law.
International law is the body of agreed rules governing
the mutual conduct of sovereign states.
In so far as it is unwritten, it
is simply the natural law or the jus gentium.
For example, it is unwritten
international law, and natural law, and a part of the jus gentium, that a
state is entitled to the peaceful enjoyment of its own property and wealth,
that it has the right to defend itself when unjustly attacked, that it can
enter into contracts, and that when it does so, the contracts are morally
binding upon it.
In addition to these obvious natural rights, international
law includes a number of agreements and conventions dealing with a variety
of subjects where a settled and harmonious policy is of the greatest convenience
to human life.
For example, the rules governing extradition, use of harbours,
civil airways and so forth are mutual beneficial agreements, and have the
moral force of contracts.
No state is free to repudiate them at will, once
it has consented to them.
This is the chief difference between international
law and the jus gentium.
The jus gentium represents a common standard
universally recognised, which is binding on all states irrespective of whether
they have consciously and explicitly assented to it, or at least until they
have openly and avowedly announced their intended departure from it.
International
law, as distinct from both natural law and the jus gentium, represents
the mutual explicit agreements by which states bind themselves, but by which
they are not bound until they have voluntarily consented to them.
It is important at all times to emphasize that
through the jus gentium and through international law, states, like
individuals, are subject to the moral law.
They are not governed simply by
expediency and force.
Even though there be no higher earthly power to which
appeal may be made and by which their actions may be judged and restrained,
there is an appeal to the conscience of mankind, which perceives the natural
law, upholds the inalienable rights of man, and approves the moral binding
force of contracts.
Nor is the conduct of states to be governed merely by
the written agreements to which they have set their hand.
It is governed
by the law of God expressed in creation and written in the hearts and consciences
of men.
top
The natural law receives expression, application
and extension in positive human law.
When men live together in society it
is obviously necessary that there be some supreme authority endowed with
sufficient power and force to maintain order and punish crime.
Man being
what he now is, finds it impossible to live peaceably and usefully in society
unless there be some superior power which shall impose the necessary rules
of social living and restrain those who violate them.
Without such coercive
force, man is so far the victim of sloth, selfishness and passion that he
cannot pursue steadily the common good of a full personal life in society,
but relapses into strife and anarchy.
The seat of this supreme authority
varies with different political systems, and to determine where it is best
placed is the work of political philosophy.
But that such authority should
be somewhere placed, and being placed, should be loyally obeyed, is a principle
of the natural law.
For it is essential to order; and order is essential
if men are to attain their true end, living together in society.
And so we
have it in Scripture,
Proverbs ii, 15,
"By me kings reign and princes decree justice",
and again in Romans i, 2,
"Whosoever therefore resisteth the power, resisteth the ordinance of God".
But this supreme authority is not unlimited. It
is checked in three directions (St. Thomas, I, n, quaest. xcvi, art.
4).
Only those laws are binding on conscience which are just; and for a law
to be just it must be directed towards the common good, it must not exceed
the competence of the authority which makes it, and, if it imposes burdens
on individuals, it must impose them fairly.
First: it must be directed towards
the common good.
All laws which are in conformity with natural law are just
laws in this respect, because the natural law inevitably tends to the common
good.
The common good is that healthy and wholesome condition of society
which makes possible or facilitates the living of the good life which the
natural law enjoins.
Laws then that clearly state and enforce the provisions
of the natural law, as for example laws against theft, or laws to enforce
the support and education of children, are manifestly just and binding in
conscience.
Equally just are laws that apply and particularise natural law
where it is vague or uncertain;
as for example a law determining the conditions
that render a will or a contract valid, or a law denying the limits of kinship
and affinity within which people may not marry.
In other words, a law is certainly just and binding
which forbids actions bad in themselves or enjoins actions good in themselves.
It is also just and binding if it forbids or enjoins things in themselves
indifferent, but which it is of manifest importance to the common good should
be either done or not done uniformly.
For example, it is a matter of indifference
in itself whether traffic proceeds along the left - or right-hand side of
the road.
But that the natural law forbidding a man to do evil to his neighbour
may be obeyed, it is vital that all traffic should drive uniformly on one
side or the other, and the law having prescribed which side, in the interest
of the common good it is the duty of all to obey.
A law is unjust if it does not conduce to the
common good.
All laws that are contrary to natural law are thus unjust.
For
they either enjoin the performance of wrong actions or forbid the performance
of good ones.
This cannot be in the public interest.
It runs, indeed, directly
counter to it.
An example of such a law would be one which prevented parents
from exercising a proper authority over their children, or a law which deprived
individuals of their natural rights (e.g. to life or to marry) on grounds
of race or colour.
Similarly all laws are unjust which strike at liberty
of conscience or of worship, for they compel men to disobey the law of God.
A law is unjust which is imposed only to promote the lawgiver's vainglory
or cupidity, and not the public good.
But if it does, in fact, promote the
public good, it is just, no matter what the lawgiver's intention may have
been.
Secondly, a law is unjust which exceeds the lawgiver's
competence.
For example, if a minister of state issues orders and regulations
that go beyond the powers that Parliament has conferred on him, such orders
are unjust.
So also if a magistrate or judge imposes a fine or imprisonment
greater than Parliament has authorized.
Parliamentary legislation on ecclesiastical
matters is certainly for this reason unjust where the Church is disestablished:
it is probably unjust here in England, where the Church is established;
but
to that we will return when we discuss ecclesiastical law.
Lastly, a law is unjust when it imposes unfair
burdens.
This is chiefly a matter of laws about taxation and it concerns
distributive justice.
It is at least arguable that the tax laws of England
are fundamentally unjust.
For example, it is not easy to defend the practice
of a single assessment of a married couple for the purpose of income tax
but a separate assessment for the purpose of death duties.
Or again, a tax
of £10s 6d in the pound, if not imperatively demanded by national urgency,
and if not accompanied by comparable hardships imposed on the lower income
groups, becomes a discriminating punitive tax amounting to virtual confiscation.
The burden of supplying the public treasury is not being distributed fairly
in proportion to the capacities of each to pay, but an excessive contribution
is being levied from a particular section.
Laws that are manifestly unjust are not binding.
No man is obliged to obey them.
It is rather a question whether he is obliged
to disobey them.
And here a distinction must be made.
Where the law positively
enjoins an evil thing,
e.g. idolatry, apostasy or the murder of innocent
persons,
disobedience is obligatory.
Where the law unjustly deprives an individual
of his right, or involves cooperation in evil rather than the actual personal
performance of evil, disobedience is not obligatory.
A man may, if he wishes,
forgo his rights. For example, if he likes to pay an unjust tax it is legitimate
for him to do so. Indeed, in some cases he has a duty to do so.
If refusal
or evasion would create scandal or would be morally certain to induce a widespread
misunderstanding that any taxes, even just ones, may properly be refused
or evaded, then it would be a man's duty to pay.
Ecclesiastical persons and
authorities are usually in this position.
Where obedience to an unjust law
involves cooperation with evil and not its actual performance, it is generally
right to disobey.
For example, if a law were to require a bookseller to display
for sale immoral literature, he could not be to blame if he refused.
But
neither would he in all cases be to blame if he obeyed.
If the result of
disobedience were grave personal loss of liberty or livelihood, mere material
cooperation might well be justifiable (see below, p. 150).
And if disobedience
were morally certain to provoke civil disturbance, there might even be a
duty to obey the law.
But any such claim, which unjust laws may have on obedience
in certain special circumstances, does not arise from the laws themselves,
but from the general duty to promote and maintain peace and order.
The question of when force may rightly be used
to escape from the burden of unjust laws, is the question of when armed rebellion
is legitimate.
This involves a choice between two evils.
On the one hand
there is the harm done to the community by the effects of the unjust laws,
on the other the harm done by the disorder and destructiveness of a period
of civil war.
The weighing of these evils is matter of nice discrimination.
In general, it may be said that rebellion is rarely if ever justified by
considerations of personal advantage only -
that is, to free individuals
or a minority from unjust oppression, -
it is the advantage to the community
as a whole of a successful rebellion which must be the dominant and decisive
factor.
And secondly, it may be said that it is the probability of a quick
and decisive issue to the rebellion which is the final determining consideration,
for this alone restricts the evils of civil disturbance and makes them less
than the evils of the unjust laws.
To sum up, then, some unjust laws must be disobeyed,
other unjust laws must be obeyed for the greater good of the community as
a whole, other unjust laws may be disobeyed, if the subject wishes and he
can do so without causing scandal and disturbance.
But all this presupposes
that the laws are manifestly and certainly unjust.
This is rarely the case.
It is usually a matter of some difficulty to determine precisely and accurately
whether a law is unjust or just, and it is not, as a rule, within the competence
of an individual to come to a clear decision;
especially as his own interests
and desires are involved, and no man is a good judge in his own cause.
The
rule is, that so long as the injustice of a law is only doubtful, the subject
may and should obey it.
On the theory that every man is innocent until he
is proved guilty, every lawgiver must be presumed to be acting honestly and
justly in the laws that he makes, until the contrary is proved.
No one, therefore,
can be blamed for obeying a law which he thinks, but is not sure, is unjust
or detrimental to the community;
indeed, he may be said to be under an obligation
to obey it out of the duty of obedience which he owes to properly constituted
authority, under natural and divine law alike.
This raises the further problem, in the case of
most modern civil legislation, whether there is, in fact, any such moral
obligation to obey;
whether such legislation is not what is called "purely
penal".
A "penal" law is one, which orders or forbids an act
and attaches a penalty to disobedience, but not a judgement of moral guilt.
Most modern legislation is, at any rate so far as explicit evidence to the
contrary goes, indifferent to the moral obligation of subjects.
It does not
address homilies to them on what they ought or ought not to do, but is content
to say, "if you do so-and-so, you will be liable to such-and-such punishment".
On this ground it is sometimes said that modern legislation is merely penal,
and that therefore there is no moral obligation to obey it as such.
But this
clearly goes too far.
In the first place, it would class as penal much legislation
which is expressive of the natural law and which therefore there is an undoubted
moral obligation to obey.
And secondly, if everyone held that there was no
moral obligation to obey any modern laws, these would rapidly become inoperative
through widespread disobedience;
for the fear of penalties alone would not
be sufficient to enforce obedience.
But if it cannot be inferred that a law is merely
penal from the fact alone that it does not expressly state that moral guilt
attaches to disobedience, it may yet be the case that some, perhaps many,
laws nevertheless are merely penal.
It is held, in support of this, that
when the law commands or forbids things indifferent in themselves, there
is no need to bring in moral obligation.
The dissuasive force of a punishment
can achieve the end of the law, uniformity or practical uniformity, without
bringing in the higher power and authority of conscience.
It is further held
that all sensible people agree that some laws are merely penal.
It is also
maintained that in some cases it can be rightly inferred from the circumstances
and phrasing of the law that it is intended only to be penal.
It is quite certain that there are some merely
penal laws:
it is not always easy to determine which they are.
A very clear
example of one is provided by the emergency alarm signal in railway trains;
"penalty
for improper use, £5".
No one really supposes that if a man pulls
the communication cord unnecessarily, he has committed a sin.
The railway
company intends that, for the sake of its own timetable and of the public
convenience, trains shall not be stopped unnecessarily.
That end is obtained
by the imposition of a fine, or the threat of such imposition, if the train
is stopped without adequate cause.
But if a man stops the train because he
wishes to pick up his hat, or alight at a wayside station, that is his affair.
He must pay £5 for the privilege.
In other words, he is under no moral obligation
not to make use of the alarm, but only to pay the fine if he does.
It may
be that many or even most byelaws and police regulations are of this nature.
Certainly ordinary people believe that they are -
the cyclist who rides without
a light, the motorist who parks his car in a prohibited place, are not burdened
with a guilty conscience.
They probably argue that in their particular circumstance
of need or convenience the fine was worth it, and that the sole intention
of the law and its fine is to dissuade people from doing this particular
thing, unless they very much want to.'
But if sometimes some people do this
thing, there is no harm done. In the case of a great many civil laws, this
is undoubtedly a plausible statement.
There is much to be said for the view
that
"only those laws bind the conscience and are, therefore, to be obeyed under sin,
which ought to have such moral force for the sake of the common good"
(H. Davis, S.J., Moral and Pastoral Theology, vol. i, p. 148).
On the other hand it is equally certain that the
multiplicity of laws and regulations, which the complicated nature of civilisation
makes necessary, could not be enforced if the majority of citizens regarded
most of them as merely penal.
It would require an army of police to see that
they were adequately obeyed.
And if they are not adequately obeyed, public
order and peace are endangered and serious inconvenience is caused.
If cars
are constantly parked along the sides of shopping streets, if cyclists habitually
ride without lights, if there is frequent spitting in trams, if people are
always walking on the grass, clearly the common good is harmed.
A police
force exacting punishments for breaches of such laws could not of itself
secure their observance.
It is necessary that the people feel themselves
to be under a moral obligation to obey.
Such an obligation is essential to
the public welfare.
It is often said that public opinion is the best
guide as to whether a law is merely penal or not.
But the standards of public
opinion are easily lowered.
Frequent breaches in a law breed in the public
mind contempt for it, and offenders easily come to feel no twinge of conscience,
even though the law in question is clearly one that "ought to have moral
force for the sake of the common good".
For example, to drive above
the speed limit in a built-up area is certainly dangerous to others, even
though the street appears empty.
Yet it is doubtful if many drivers feel
under a moral obligation to observe this law.
Trafficking in the "black
market" is clearly against the public interest.
Yet in some countries
we are told that it is almost universal, and presumably public opinion does
not condemn it as immoral.
Public opinion in these matters is not a safe
guide.
It needs itself to be educated.
The conclusion, then, would seem to be this.
It
is, certainly, a "probable" opinion that most laws of the police
regulation type are penal only.
They create no other moral obligation than
that of submitting to the penalty attached to breaches of them.
This opinion
is held by many authors of high repute, is endorsed by the judgement of widespread
public opinion, and has good intrinsic reasons in its favour.
The general adoption of this view would have interesting
and important consequences.
It would mean that a number, perhaps most, of
the regulations and controls governing manufactures and trade would be regarded
as penal laws carrying no moral obligation.
Black market offences, except
in the case of acute shortages of the necessities of life, would not be moral
offences.
It is certain that the holders of this view regard the taxation
laws, and especially the Customs laws, as merely penal.
Thus evasion of income
tax and smuggling, at least of articles for one's own personal use, would
not be moral offences unless they also involved some element of fraud, deceit
or lying.
This seems to be the view of Father Davis {op. cit. vol.
ii, p. 339).
He holds that the obligation to pay taxes, in England, is "certainly
penal only".
Consequently, although "there is no possible excuse
for studied evasion of taxes and therefore all citizens should be urged to
pay their share of the taxes", yet "postfactum it is not
necessary to urge restitution".
It is not clear why, if the obligation
to pay taxes is "certainly penal only", the studied evasion of
them, apart from actual fraud or lying, should be without any "possible
excuse".
But Father Davis cannot bring himself to draw the logical conclusion
from his premise.
On the contrary, he feels constrained to add that
"nevertheless, whatever may be held in point of theory as defensible,
Catholics should err on the side of strictness,
for even the statement, and still more the putting into practice, of the complete doctrine on taxation,
are apt to give scandal and to harm religion.
It is chiefly post factum that the confessor may use -
but with the greatest prudence in speech -
the common teaching without scandal."
It is this kind of difficulty which lends weight
to the view that the opposite opinion is intrinsically more probable.
This
opinion holds that while some laws are undoubtedly penal only, it is difficult
to determine which they are, and such determination is not to be left safely
to the judgement of individuals, nor inferred from public opinion, as each
situation arises.
Secondly, it holds that the complications of modern life
make many regulations essential to peace and order which in a simpler society
would be unnecessary:
that, therefore, obedience to such regulations is conducive
to the public good, and in consequence a moral obligation.
Thirdly, it holds
that disobedience to properly constituted law sets a bad example and tends
to produce a general contempt and indifference to law;
that, therefore, there
is a general moral obligation to obey all just laws, arising not so much
from the particular laws themselves, if they be about relatively trivial
matters, as from the general duty of serving the public good by promoting
respect for law.
This view therefore holds that everybody should not only
be exhorted to obey the laws, but also instructed that they are under a moral
obligation to do so.
To insist that there is, then, an obligation to
obey all just laws, is not to insist that in all cases the obligation is
equally stringent.
To equate the moral guilt involved in a breach of the
traffic regulations with that of murder would be absurd.
The degree of obligation
to obey a law is relative to the importance of its subject matter, and a
breach of a comparatively unimportant law involves only slight guilt.
The
importance of the subject matter of a law depends, ultimately, on its relation
to the natural law.
Laws that directly enforce the requirements of the natural
law -
that is, which concern things good or bad in themselves -
are all of
them important, and involve a strict moral obligation.
Those that concern
the moral law indirectly by ordering things indifferent in themselves for
the sake of the public good and convenience, involve usually only a light
obligation.
In determining the importance of any law, however, account must
be taken not only of its subject matter, but also of its purpose and of all
relevant circumstances.
For example, the law requiring all traffic to drive
on the left-hand side of the road is important.
Its subject matter is in
itself indifferent, but its purpose - the prevention of accidents - and
the general circumstances of traffic conditions in England, make it important
and the obligation to obey it, grave.
In common practice, the degree of obligation
of any law can usually be inferred from the actual wording of the law - i.e.
if it expressly states the importance of obedience - from the gravity of
the penalty attached to infringements, and from the general opinion of lawyers
and of prudent men.
Although the breach of any particular unimportant
law involves only slight guilt considered in itself, it can be gravely sinful
if it proceeds from general contempt of the law.
In such a case there is
a formal rebellion against and denial of legitimate authority.
When a man
breaks a law just because it is the law, and for no other reason than that
he despises the law and wishes to show his contempt for it, his guilt is
grave, no matter how trivial the law itself may be.
But this formal contempt
must not be confused with irritation at a particular law, naming into passion.
Contempt is not annoyance at any one law, but an attitude of indifference
or scorn towards law in general and the lawgiving authority.
It is probably
rare in actual practice, but may be found in the two extremes of society
- the very rich who think themselves above the law and under no obligation
to obey it if it does not suit them, and the discontented poor who think
that in some way they "score off" society by flouting the law.
The obligation to obey just laws extends to an
obligation to know what the law is.
No law is binding until it has been properly
promulgated, that is, publicised.
But once it has been promulgated, the
subjects are expected to know it, and have a duty to take all reasonable
steps to make sure that they do know it. If this were not so, laws could
not be operative.
Accordingly, it is the duty of everybody to read
the newspapers, or listen to the wireless, in order to acquire at least
a general knowledge of the law.
The actual steps in this direction which
a man is under an obligation to take, and the degree of knowledge which he
ought to have, depends on his capacity and duties.
Ordinary people, with
little leisure, cannot be expected to read lengthy Acts of Parliament in
full, nor could they gain much knowledge of the law if they did, in view
of the customary complexity and obscurity of such Acts.
Lawyers, on the other
hand, administrators and officials have a duty to know the law fully and
exactly.
In addition to knowledge of the law, there is
a duty to take ordinary and reasonable steps to be able to obey it.
But there
is no obligation to do something extraordinary or to foresee remote or unlikely
contingencies and guard against them -
for example, a motorist who knows
that he will be driving after dark should see that his rear light is working;
but he is under no obligation to carry a spare bulb in case the existing
one breaks.
Yet one must not act in such a way as to make it impossible or
unnecessarily difficult to obey the law.
For example, if the law requires
me to pay my taxes at a given date, I may not give away all my ready money
just before that date.
In other words, the obligation to obey the law includes
an obligation to take all reasonable means to be in a position to obey it.
The obligation to obey human law ceases when obedience
is impossible.
When obedience is absolutely impossible, obligation to obey
any law, even natural law, ceases.
For one cannot have a duty to do what
is impossible.
Thus a clergyman has no duty to visit his parishioners while
he himself is ill in bed, nor to say his office if, through no fault of his
own, he has lost his book and cannot get hold of another one.
Obligation
also ceases if obedience is morally impossible, that is, if the law cannot
be obeyed without unusual and excessive difficulty and labour.
A wife's duty
to live with her husband ceases if it exposes her to acute danger to life
or morals.
A law requiring a citizen to register would not oblige, on the
ground of absolute impossibility, if he were a prisoner in the hands of
the enemy;
on the ground of moral impossibility, if it involved a long and
expensive journey.
An ecclesiastical law of fasting does not bind if it
involves real danger to health.
The reason is that just laws are intended
for the good of the community and individuals.
If they are in general difficult
to obey, they will in fact not be obeyed, and that is bad for the community.
Lawgivers, therefore, do not make laws that are universally difficult.
If
a particular law turns out to be difficult to obey in a particular case,
there is a presumption that it is not intended to apply in that case.
Hence
the saying "No human law obliges in circumstances of great inconvenience".
But to determine in any given case whether the difficulty is such as to excuse
from obedience, requires a nice judgement of the importance of the law and
the power and resources of the subject, and indeed of all the relevant circumstances.
Since no man is a good judge in his own cause, it is always advisable to
seek advice from prudent and experienced persons.
top
The corruption of human nature has induced a certain
blindness to the precepts of the natural law.
Its full implications and remoter conclusions are with difficulty understood
and accepted.
Even the simpler commandments are sometimes denied under the influence of
passion and of evil examples and customs.
Men "rationalise" their conduct, and justify the unjustifiable.
Beside, self-interest and habit blind men to quite elementary truths about
human nature, and in consequence vitiate their conclusions about the content
of the natural law.
Because of this,
God has revealed in Scripture both the ultimate
truth about human nature -
that man is created in the divine image, to enjoy eternal communion with
God -
and the broad general principles that should govern human conduct.
In the Bible is contained, in outline,
the whole DUTY OF MAN -
HIS DUTY TO GOD,
HIS DUTY TO HIS NEIGHBOUR.
It is the task of reason to interpret and apply this positive
divine law to the changing circumstances of each day,
but always so as to remain faithful to the broad outline and general principles
contained in Scripture.
The content of this positive divine law falls
into three classes.
1. *The duties towards God Himself.
These involve the cultivation of the three theological
virtues,
or in the words of the Catechism
My duty towards God is
1. to believe in Him,
2. to fear Him and
3. to love Him.
God's message in Scripture is one of man's dependence on Him and His care for man.
"By grace are ye saved through
faith."
THE FIRST DUTY IS TO BELIEVE IN GOD, TO TRUST HIM.
The next is, in the strength of that faith, to hope firmly for the fulfilment
of God's promises.
The third duty, inspired by faith and hope, is to love God and to find all
our treasure in Him.
By obeying the first law and commandment of God to seek Him, in faith, hope
and love, man is set on the way to the attainment of his true end. It is
the burden of revelation that man will not achieve this end by the pursuit
of virtue in itself and by himself. He must seek God, and depend on Him.
The first class of precepts of the positive divine law is therefore concerned
with man's response to the divine initiative.
Closely allied to this is the second class, which
deals with THE SACRAMENTS.
There is a positive command to use the means of grace, which God promises.
"Except a man be born again";
"Do this in remembrance of Me".
Scripture reveals the principle of God's redemptive activity, through Christ
in the Church.
Men are bidden to conform to this principle.
"There is none other name under heaven given among men, whereby we must be saved."
"If ye love Me, keep My commandments."
Positive divine law prescribes the approach to God
THROUGH THE SACRAMENTS IN THE CHURCH.
Lastly, there are the commandments concerning MORAL DUTIES.
These are a reaffirmation of the natural law.
The revelation of the natural law contained in the Law of Moses is confirmed
and extended.
"I came not to destroy the law, but to fulfil it."
The simple commandments of the Decalogue are revealed as resting on the
profound principle of the common sonship of all men to God.
Justice between masters and men,
honour and obedience between parents and children,
are due because there is one master and father in Heaven.
Obedience to the commandments of God is shown to involve not only outward
conformity in action,
but inward sincerity of thought and disposition.
The pattern of human behaviour - perceptible, at least in theory, by the reason
alone, as the natural law - is clearly outlined and enjoined in the two great
Commandments:
"Thou shalt LOVE the Lord thy God and thy neighbour as thyself".
In some matters it is specifically applied in detail.
Chastity in thought and deed,
forgiveness towards all,
compassion for the weak,
and many other things,
are explicitly commanded in Scripture by the positive divine law.
In this way blinded and corrupt human nature is given a lantern unto its
feet,
that it may know the paths of God to walk in them.
The positive divine law is a revelation of truth.
It is therefore valid for all men, baptized and unbaptized alike.
As with the natural law, of which indeed it is in part but a revealed exposition,
violation of it brings inevitable penalty. For those who do not walk in the
law of the Lord must stray further and further from Him till they end in
the irretrievable loss of their inheritance. But where the positive divine
law goes beyond the natural law, by commanding either things which are immediate
conclusions from the revelation of the divine nature given in Scripture - as
in the two first classes of precepts - or are specific and detailed applications
of the natural law, whose truth is made more easily perceptible by the revealed
knowledge of the nature of God - as for example the commandment of mercy - those
to whom the Gospel has not been preached are without sin if they break it.
In other words, disobedience to the positive divine law, as such and contrasted
with the natural law, is not imputable to those to whom the Christian revelation
has not been vouchsafed.
"If I had not come and spoken unto them, they had not had sin."
To the Church is entrusted great legislative power in matters of faith and morals. It is the task of the Church, under the inspiration of the Holy Spirit, to preserve, to interpret and to proclaim the revealed truths of God. To this end, it is her duty to rebuke error and to define what doctrines truly express the truth that she has revealed, and what standards of conduct are conformable to them.
This legislative power resides in the Apostles and their successors, the Bishops. To them the Lord gave the power of binding and loosing, and they are "the stewards of the mysteries of Christ". Ecclesiastical law properly concerns whatever tends to the establishment and promotion of true religion and of good morals; it therefore includes all that is necessary to the good estate of the Church itself, which is the safeguard and expositor of religion and morals. The chief areas of ecclesiastical law are:
(1) the definition of the faith,
(2) the administration of the sacraments and of public worship,
(3) the morals of clergy and laity,
(4) the exercise of the functions of the ministry by the clergy in a system
of organised jurisdiction and
(5) the possession and administration of property owned by the Church.
The law of the Church of England is based on the law of the universal Church as that developed continuously from Apostolic days. For example, the Church of England holds to the ecumenical creeds, and condemns as false all doctrine contrary to these creeds. It maintains the threefold ministry of Bishops, Priests and Deacons with their respective states and functions, as that is based on Scripture and developed during the Patristic period. It recognises the territorial division of the Church into dioceses, subdivided into parishes on the one hand, and grouped into provinces on the other - again as that developed during the Patristic period. Secondly, the law of the Church of England embodies much of the later law of mediaeval Western Christendom, as, for example, the powers and duties of Archbishops, Bishops and Archdeacons, and of their officials. Thirdly, the law of the Church of England is found in the Canons passed by the Provincial Convocations or Synods. Fourthly, it is contained in numerous Acts of Parliament.
This is not the place for a treatise on the ecclesiastical law of the Church of England, which is a very intricate subject in itself, and which would require, for complete treatment, a survey of the law not only in England but also in the many over-sea provinces of the Anglican Communion. But a word may be in place about the way in which ecclesiastical laws are now made in England, and of the function of the Grown and of Parliament.
Before the Reformation, English Church law was the law of Western Christendom, accepted under the authority of the Pope. There was little, if any, independent legislation. English Councils were content to promulgate or particularise Papal decrees. At the Reformation, the authority of the Pope being repudiated, the English Church was declared autonomous. The Act in Restraint of Appeals (24 Henry VIII, c.12, 1533) states in its preamble that the realm of England is an empire, and that the body spiritual thereof has power to declare and interpret any cause of the law divine happening to come into question. The following year the Act of Submission of the Clergy bound the Convocations not to enact or promulgate any fresh legislation without the King's assent, undertook a reform of the existing law, but maintained that law in force until the revision could take effect. The claim that England is an empire was at once a denial of the Papal authority and a claim on behalf of Henry that he should occupy in relation to the Church the position recognised as belonging to an emperor at least from the time of Justinian. The supreme authority to summon councils and to approve ecclesiastical legislation was to vest, here in England, where it had always vested in the East, in the Emperor. Such was the intention of the Reformation Establishment. But though the Tudors were autocrats, they were not in fact Oriental despots. For their more important ecclesiastical legislation they deemed it prudent not merely to give their assent to the proposals of divines or of Convocations, but to pass them through Parliament also, so as to give them the statutory force and authority of that representative body. This convenient device was later justified by the lawyers on the theory that, as the laity are not represented in Convocation, ecclesiastical laws which are to bind the laity must have the sanction of the lay Parliament. Thus successive Acts of Uniformity have ratified and imposed Prayer Book, Ordinal and Articles drawn up by the Convocations. And what Parliament has sanctioned, only Parliament can alter.
The claim that England is an empire and her spirituality in consequence fully competent to settle all questions of divine law, was a claim to freedom of legislative power. As the Articles put it, "The Church hath power to decree Rites and Ceremonies and authority in Controversies of Faith". But this power, of course, is subject to the proviso that nothing be done which is contrary to Scripture (Article 20). In the same way Article 34 states that "every particular or national church has power and authority to ordain, change and abolish ceremonies or rites of the Church ordained only by man's authority, so that all things be done to edifying". Acting under this claim, the Church of England through her Convocations revised the Liturgy and Ordinal, in strict conformity, as she believes, with Scripture, and settled certain disputed matters of theology in the Articles. Acting under this claim, she repudiated certain parts of the canon law - for example, the prohibition of the marriage of the clergy - and revised others.
The projected wholesale revision of the canon law, however, came to nothing. The only canonical legislation, which the Church of England possesses, is a series of 141 canons enacted in 1604. The old law continued in force, save where it had been altered by these canons or by Acts of Parliament. The real reform of ecclesiastical organisation and machinery took place not at the Reformation in the sixteenth century but during the nineteenth century. It was done by a series of Acts of Parliament. This was partly because for some of the time the Convocations were not meeting, and partly because only an Act of Parliament has the necessary force to make the reforms binding. Most of the Acts were instigated by opinion within the Church, and were subsequently accepted by the Church and acted upon. Only Parliament had the necessary force, because the reforms were to affect the laity as well as the clergy, and sometimes involved questions of patronage and other property rights. It had been ruled by the lawyers that canons embodying new legislation, and not merely declaratory of the old canon law, are of no effect as regards the laity, and bind the clergy only in spiritual matters. And from long before the Reformation questions of patronage had been held to belong to the secular courts. If the new legislation was to be of unquestionable force and efficacy, it had to be by Parliament.
In the early years of the twentieth century the increasing pressure upon the time of Parliament caused by the rapid growth of secular legislation made it almost impossible for any attention to be given to the pressing needs of the Church. Accordingly in 1921 the Church Assembly was created. This is an Assembly of the two provinces of Canterbury and York. It consists of three houses: Bishops, Clergy and Laity. The Bishops and Clergy are the upper and lower Houses of the two Convocations. Saving the rights and powers of the Convocations, the Assembly may debate any matter that concerns the Church, may cast its deliberations into the form of a measure, and submit the measure to Parliament. Parliament may either enact the measure or reject it. It is powerless to amend it.
During the nineteenth century the Convocations
revived. There is a Convocation of Canterbury and a Convocation of York.
The Archbishop is the President. The Upper House consists of the Diocesan
Bishops. The Lower House consists of the Deans, Archdeacons and certain representatives
elected from each diocese. The Convocations have authority to make new canons
but subject to four stringent conditions:
they must not be
(a) against the prerogative of the King, nor
(b) against the common law, nor
(c) against any statute law, nor
(d) against any custom of the realm.
These are severe restrictions, and it is probable that every proposed canon
that dealt with a matter of any importance would be found to violate at least
one of these conditions. Accordingly, if it were to be valid and operative,
it would require not only the royal assent, but also some kind of Parliamentary
sanction to override the contrary statute or common law or custom.
The position, then, is this. Measures of the Church Assembly, in order to become law, require Parliamentary enactment. Canons of the Convocations require only the royal assent, if they satisfy certain very exacting conditions. In practice, they also need Parliamentary ratification. There is therefore a very real and substantial Parliamentary control of ecclesiastical legislation. But it is important to be clear as to its precise nature. It is untrue to say that Parliament actually legislates for the Church. Since the creation of the Church Assembly, Parliament has not done that, except in matters of property, like the Tithe Acts. Parliament does not initiate legislation, nor does it amend proposed legislation submitted to it. Its control consists in the power to enforce or to refuse to enforce. It exercises this power directly in the case of Church Assembly measures, indirectly in the case of canons of Convocation - by refusing to repeal or amend its own statutes, without which the canons cannot become operative. The contention that Parliament rightly has a more positive role in ecclesiastical legislation, because it represents the laity, and Convocation does not, has now lost whatever validity it had, by the constitution of the Church Assembly with its House of Laity. The claim that the National Parliament properly governs the Church of England because it is the Church of the Nation has been considerably weakened by the Toleration Acts. The justification of Parliamentary control lies elsewhere.
Unlike those of other religious bodies, the rules of the Church of England are laws of the realm, and are enforceable as such. They bind the members of the Church of England as law, not, as those of other denominations bind their members, by mutual agreement. Henry VIII's claim to be an emperor, and therefore to possess a supreme legislative and juridical control over the Church, and the acceptance of that claim by the "Submission of the Clergy", mean that the laws of the Church are in the last resort enforced "in the King's name". The King has a clear right - not to legislate directly; that he does not do - but to say what rules he will or will not enforce. That is the justification of the requirement of the royal assent to canons. But since the power of the Grown to enforce obedience to the laws is now exercised through Parliament, it necessarily follows that Parliament rightly possesses a similar claim to say what laws the Crown shall be advised to enforce. This is the inevitable consequence of the fact that the laws of the Church of England are laws of the realm of England. This fact is an essential element in the Establishment. Of the relative value and hindrance of the Establishment to the true work and duty of the Church this is not the place to speak. Our more immediate concern is with the claim on conscience of the ecclesiastical law as it now is.
It is not open to question that the Convocations are the legitimate legislative authority in the Church of England. Canons that have been duly enacted by Convocation, have received the royal assent and have been promulgated are unquestionably binding in conscience. He who refuses obedience to them refuses obedience to the Church. Church Assembly Measures are in a somewhat different position. Some people have doubts whether the Church Assembly has any right or authority as a part of the ecclesiastical legislative authority. These doubts do not seem to be well founded. The Church Assembly was set up at the formal request of the Convocations, and every member of the Convocations is a member of the Assembly. On the other hand, it has nowhere been laid down with precision what matters should properly be dealt with by the Assembly and what by the Convocations. Custom will no doubt settle the matter in time, and it appears likely that questions of faith and morals will be dealt with in the Convocations and questions of administration in the Assembly. But at this point Parliament steps in. A law governing faith and morals may be decided upon in Convocation. For its enforcement the repeal or amendment of some Parliamentary statute may be necessary. The best, if not the only way of securing this, is by a Church Assembly measure. And this involves treating the whole matter over again in the Assembly. The most striking example of this procedure is afforded by the Revision of the Prayer Book, 1927-1928. It is therefore, perhaps, impossible to draw a sharp and clear dividing line between the duties of Convocation and of the Assembly. This is unfortunate, for there are some matters that it is particularly the business of Convocation to settle and which should be embodied in formal canons with all the moral weight attaching thereto. Nevertheless, within its limits - whatever they are - the Assembly is a lawful legislative authority, and its measures, in consequence, binding on conscience.
It is sometimes said that a Church Assembly measure is lacking in moral authority because it becomes a Parliamentary Act and goes on the Statute Book, and therefore derives its authority from Parliament and not from the Church. This seems to be a confusion. The moral authority of a measure derives precisely from the Assembly, where it originated. It is its legal authority, its enforceability, which derives from Parliament. When Parliament ratifies it, the measure has both moral and legal authority. This may suggest that a measure passed by the Assembly but rejected by Parliament - like the Prayer Book measure - has moral authority and is binding in conscience. This is a point of some difficulty and deserves a little consideration.
Every subject is under a moral obligation to obey the laws of legitimate authority, but not their wishes. For if a lawgiver desires his subjects to obey him in any matter and wishes to put them under a moral obligation to do so, he makes a law about it. The fact that he does not make a law, but contents himself with the mere expression of a wish, is good evidence that he does not intend his subjects to be under any obligation in this matter. A Church Assembly measure that is not enacted in Parliament, is not a law, it rather resembles a wish. The same is the case with a canon that has not received the royal assent. No one, therefore, can be under an obligation to obey either. All those who believe that Grown and Parliament have a rightful say in ecclesiastical legislation must logically hold this view. For they must hold that there can be no Church law that has not received the sanction of one or the other. And what is not law, there is no obligation to obey.
For those who believe that the authority of Crown or Parliament is, as it were, accidentally superimposed upon Assembly and Convocation, serving the purpose not of actual legislation but of enforcing legislation, the position is not so simple. As things are, unratified measures or canons have not the force or form of law. Yet they are the pronouncements of a body that has, of right, sovereign legislative power. It can scarcely be conceded, by such people, that they are of no authority whatsoever. Attention must be paid to the intention of the lawgiver. By acquiescing in the Establishment, the Church accepts that its laws are made in the way they are made. If any proposed legislation does not attain to the status of law, and nothing further is done about it, it must be presumed that the legislating authority in the Church is content, and has no wish to impose any obligation on Churchmen in the matter. It has expressed a wish, but has gone no further. In that case, the rejected canon or measure is not binding in conscience. But the authority might not be content to leave things as they are. It might say, "We cannot enforce this law, nevertheless we impose it on all Churchmen as a 'preceptive' law, that is, a law which all must obey under pain of sin but to which no temporal penalty attaches for disobedience". Here the intention to impose an obligation to obey is plainly stated. Those who believe that the Convocation or Assembly has an inherent and inalienable right and authority to legislate freely for the Church, must accept such a pronouncement as creating law and therewith moral obligation.
In certain circumstances such a pronouncement would not give rise to any great difficulty in the relations of Church and State. If the Church forbids what the State only permits, the Churchman may easily, and should, obey the Church. For example, when the Church forbids divorce and re-marriage. When the Church orders what the State forbids, the issue of the Establishment is immediately raised. But in such an event the obligation of the Churchman to obey the Church is clear. For example, if an "unratified canon" forbade a clergyman to marry in his church two divorced parishioners, while the common law asserted that he is under an obligation to do so, you would have a direct conflict.
It may be said that Convocation and Assembly are themselves subject to the law, and therefore have no right and authority to issue a law, even "preceptive", which is contrary to the existing law. If it is true that Crown and Parliament have a right to an essential place in the actual making of Church law and not merely to its enforcement, this is so. They are subject to a law that can only be altered or created by the concurrence of Church and State: or, on an extreme view, they are subject to a law imposed by the State. But if they are sovereign legislative authorities in their own right in matters of faith and morals and in regard to members of the Church, and require the concurrence of the State only for the purpose of enforcing obedience to their decisions, then they are above their own law and able to alter or create it. They are above it, that is, as corporate bodies. Their individual members, or their constituent parts, are of course subject to it. On this view, the Convocation, for example, by formal enactment with the concurrence of both Houses, could issue a "preceptive" law. The House of Bishops alone, and still less an individual Bishop, could not.
The last instance is true of "laws" which run counter to the existing fully formal law. But within the framework of existing law there is an area of administrative detail in which the House of Bishops is competent to legislate for the province and an individual Bishop for his diocese. It is in this respect that the clergy take an oath of "canonical obedience" to the Bishop. This oath binds them, under sin, to obey the Bishop not only when he orders obedience to the canons themselves, but in all other matters reasonable and just which are not contrary to the canons. Such provincial or diocesan laws and regulations are "preceptive" only. No penalty, but only guilt, attaches to their disobedience. And in this, as in all other matters, the clergy must in the last resort obey their own consciences. If they are convinced that any given law is not conducive to the spiritual welfare of their people, and is contrary to the true interest of the Church, then they judge it to be an unjust law and to have no claim on their obedience. But the reaching of such a conclusion is a grave responsibility, and probability alone is not sufficient to form a certain conscience. On the other hand, the framing of such regulations is equally a grave responsibility, and Bishops are unwise who issue them without deep consultation with their clergy. They are also uncharitable, in that they are reckless of laying on their clergy great burdens of conscientious doubt.
Man, the creature of God, is under law.
This law,
the condition of his nature and destiny, he is under obligation to obey,
that he may fulfil the purpose of his Creator.
The broad pattern of his behaviour,
which this law dictates, he is able to perceive by the exercise of his reason.
His reason is aided and cleared by revelation, which affirms the obligation
of certain actions, and discloses the truth about man's own nature.
This
natural and divine law is amplified and adapted to the changing circumstances
of human life by the provisions of positive human law, ecclesiastical and
civil.
These, so far as they embody and reflect the law of God, impose a
moral obligation to obey.
The law in all its forms provides the objective,
external, norm and criterion of human action, the standard of right and wrong.
The
perception of the justice of law, its application to daily problems and
situations, is the work of conscience.
Conscience binds the law on man by
perceiving the obligation that it imposes here and now.
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