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Dear Father Angelo,
I wanted to ask you for clarification regarding compliance with the law.
I have read that in moral theology it is usual to distinguish between preceptive laws, penal laws and mixed laws.
Preceptive laws would be laws that impose moral obligations, but without determining penalties for transgressors.
Criminal laws, on the other hand, would be laws that morally oblige only to suffer the punishment provided for by the law in case of transgression, without implying a moral obligation to respect them, even if this last point would depend, in the final analysis, on the intention of the legislator to apply or not a supernatural sanction to the law promulgated.
Finally, mixed laws would be a combination of precepts and penalties. My question is: in today’s civil legislation, what examples do we have of these merely criminal, preceptive or mixed laws? Given that now in Italy and in most countries in the world it is evident that the various legislators have given up on applying a supernatural sanction to their own laws, it means that today’s civil laws fall among merely criminal laws and that, for the rest, they oblige only to the extent that they “confirm” natural law?
I thank you for any response and greet you cordially, remembering you in my prayers.
Priest’s answer
Dear Friend,
1. the triple distinction of laws seems complicated to me, even if the contents contained are true.
In its place, St. Thomas would propose a simpler double distinction between moral laws and positive laws.
2. Moral laws have God as their author.
Positive laws have civil authority as their author.
3. Moral laws always burden one’s conscience, so their transgression constitutes a sin.
For positive laws, a distinction must be made between laws issued by a perfect society and laws issued by an imperfect society.
4. Perfect societies are those which are sufficient on their own to achieve their own goal or perfection and are independent from other societies.
Perfect societies are the state and the Church.
By natural law or by reason of faith they pre-exist the individual, who finds himself regulated by these laws.
Violation of these laws constitutes sin before God.
5. Imperfect societies arise from the will of the contracting parties and everyone is free to participate or not.
Human organizations, such as religious orders, associations of various types, clubs, etc., are imperfect societies.
The laws issued by such organizations do not bind in conscience, that is, under sin. Their violation, however, is punishable by penalty.
6. Saint Dominic, in an innovative way, wanted the rules of his Order not to oblige the friars under sin.
I remember that when I was a novice in the Dominican Order, the first time I accused myself of having failed to observe the silence prescribed by the Constitutions, the confessor immediately stopped me by saying: “It is not a matter of confession”.
Aware of this, Blessed Piergiorgio Frassati urged people to enter the Dominican Third Order also because a possible transgression of the Rule did not constitute a sin and was not a matter of confession.
7. Laws that do not burden one’s conscience are called merely penal laws in theological jargon.
This means that those who transgress them can suffer punishment from the authorities, but it does not constitute a sin and therefore a matter of confession.
Even the Constitutions of the new religious Congregations, starting from 1901 with the “Norms of the Sacred Congregation of Bishops and Religious” oblige only “ad poenam” and not under sin.
In other words, infringements of these laws constitute legal guilt, but not moral guilt.
More than a law, they have the value of legislation.
8. Common sense itself is ready to recognize the existence of such laws at least for imperfect societies freely organized by men.
Think, for example, of the infinite cultural, sporting and welfare associations to better use one’s free time… No one is forced to join. Those who join must certainly do their best in promoting the common good of the association.
However, he can waive his rights. Violation of these rules is liable to punishment. This means that under the regulation you can be deprived of active or passive voice (vote or be voted for) or ousted.
9. Finally, no civil authority can issue supernatural sanctions. Only the Church can do this and exclusively for the present life.
The laws issued by the state burden one’s conscience (under penalty of sin) both when they confirm natural law and in its further legitimate development, such as the obligation to contribute to the common good by going to vote, up to the most arbitrary determinations (for example : voting takes place only on such day and until such time) provided that such decisions do not go against natural law.
With the best wishes for a peaceful continuation of the Christmas holidays, I bless you.
And while I thank you for the prayer you have assured me, I willingly accompany you with mine.
Father Angelo