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 LAW

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varieties of dut> imposed, law is classified as: com- manding, prohioitive, permissive, and penal. Ck)m- manding laws (leges affirmoHvoi) make the perform- ance of an action, of something positive, obligatory; prohibitive laws {leges ne^cUivce), on the other hand, make oblig&tor^ an omission. The principle holds good for prohibitive laws, at least if they are absolute, Bke the commands of the natural; moral law, (*'Thou shalt not bear false witness", **Thou shalt not com- mit adultery", etc.) that they are always and for ever obligatory (leges negativce obligant semper et mo sem^ per — negative laws bind always and forever), i. e. it IS never permissible to perform the forbidden action. Conunandinf laws, however, as the law that debts must be paid, alwSys impose an obligation, it is true, but not for ever (l^es affipnatiwB obUgant semper^ sed non pro semper— affirmative laws are binding always but not forever J, that is, they continue always to be laws but they do not oblige one at everv moment to the performance of the action commanded, but onlv at a certain time and under certain conditions. All laws which inflict penalties for violation of the law are called penal, whether they themselves directly define the manner and amount of penalty, or make it the duty of the judge to inflict according to his judg- ment a just punishment. Laws purely penal (le^es mere pcenales) are those which do not make an action absolutely obligatory, but simply impose penalty in case one is convicted of transgression. Thus they leave it, in a certain sense, to the choice of the subject whether he will abstain from the i>enal action, or whether, if the violation is proved against him, he will submit to the penalty. The objection cannot be raised that purely penal laws are not actual laws be- cause they create no bounden duty, for they oblige the violator of the law to bear the punishment if the authorities apprehend and convict him. Whether a law is a purely penal law or not is not so easy to de- cide in an individual case. The decision depends on the will of the lawgiver and also upon the general opinion and custom of a community.

B. In treating of promulgation a distinction has to be made between natural moral law and positive law. The first is proclaimed to all men by the natural light of reason; positive laws are made known by special outward signs (word of mouth or writing). The nat- ural moral law is a law inseparable from the nature of man; positive law, on the contrary, is not. In re- gard to the origin or source of law, a distinction is made between Divine and human laws according as they are issued directly by God Himself or bv men in virtue of the power granted them by God. If man in issuing a law is simply the herald or messenger of God, the law b not human but Divine. Thus the laws which Moses received from God on Mount Sinai and proclaimed to the people of Israel were not human but Divine laws. A distinction is further made be- tw^een the laws of Church and State according as they are issued by the authorities of the State or of the Qiurch. Laws are divided as to origin into prescrip- tive and statute law. Prescriptive, or customaiy, law includes those laws which do not come into exis- tence by direct decree of the lawgiving power, but by long continued custom of the community. Yet every custom does not give rise to a law or a right. In order to become law a custom must be univereal or must, at least, be followed freely and with the intention of raising it to law by a considerable part of the popula- tion. It must further be a custom of long standing. Finally, it must be useful to the common welfare, be- cause this is an essential requisite of every law. Cus- tom receives its bindine, obligatory force from the tacit or legal approval of the lawgiver, for every true law binds those upon whom it is imposed. Only he can impose a binding obligation on a community on whom the supervision of it or the power of jurisdiction over it devolves. If the legislative power Ix^longs to a

people itself it can impoee obligation upon itself as t whole, if it has not this power the obligation oan only be formed with the consent of the lawgiver (see Co*- tom;.

A classification of law, as limited to law adminis- tered in the courts, and familiar to Roman jurispru- dence, is that of law in the strict sense and equity (jiis strictum et jus cequum et honum). Ekjuity is often taken as synonymous with natural justice.* In this sense we say that equity forbids that anyone be judged unheard. Frequently, however, we speak of equity only in reference to positive laws. A human lawgiver is never able to foresee all the individual cases to which his law will be applied. Consequently, a law though just in general, may, taken literally, loul in some unforeseen cases to results which agree neither with the intent of the lawgiver nor with natiural jus- tice, but rather contravene them. In such cases the law must be expounded not according to its wording but according to the intent of the lawgiver and the general principles of natuml justice. A reasonable mwgi ver could not desire this law to be followed liter- ally in cases where this would entail a violation c^ the pnnciples of natural justice. Law in the strict sense {jus strictum) is, therefore, positive law in its literal interpretation; equity, on the contrary, consists of the principles of natural justice so far as they are used to explain or correct a positive human law if this is not in harmony with the former. For this reason Aristotle (Ethica Nicomachea, V, x) calls eouity the correction (iTay6p$(afM) of statute or written law.

St. Thomab, Summa Theologica, I-II. Q. xc sqq.; Suabks, De Itffibua et legUlatore Deo, I; Latmann, Theologto morali^, I, tract, iv; Bouqcillx)N, Theologia /undamcntalU, no. 52 sqq.; Taparelli, Saoffio ieoretico di dirxUo naturale, I, b. 03 sqq.; Meyer. Orundaiitze der Sittlichkeii und dea Rechta (1868): Idem. Inatitutionea juria naturalxa, I (Freiburg, 1006), no. 218 sqq.; Wy.RNE, Jtia Decretaliutn, I (Rome, 1808). 70 sqq.: ScBimNi Philoaophia moralxa^ I (Turin, 1801), 104 sqq.; Lehmkuhl. Theolooia tnoralia, I, 67 sqq.; Rickabt, Moral Phitoaophy or

and RiqhU of Man (London, 18S8); (^athrein, Moralphxloao- phie, I (Freiburs, 1004), 332 sqq.: Sciileiermacher, Ueberden Vnterachied von SiUenoeaeiz und Naturgeaetz ^Berlin, 1825); Zeller, Begriff und BegrHnduno der aUUichen UeaeUe (Bcriin, 1883); Lackner, Wie unieracfieidet aich daa Sxttenotaets vom Naturgeaetz: Spes cer, Principlea of Ethica: I, Data of Ethica (London, 1881), N-ii; Paduben, Svatem der Ethik, I (Berlin, 1000). 320 sqq. V. CaTHREIN.

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Law. Canon. — ^This subiect will be treated under the following heads: I. General Notion and Divi- sions. II. Canon Law as a Science. III. Sources of Canon Law. IV. Historical Development of Texts and Collections. V. Codification. VI. Ecclesiastical Law. VII. The Principal Canonists.

I. General Notions and Divisions. — Canon law n the body of laws and rej^ations made by or adopted by ecclesiastical authonty, for the government or the Christian organization and its members. The word adopted is here used to point out the fact that there are certain elements in canon law borrowed by the Church from civil law or from the writings of private individ- uals, who as such had no authority m ecclesiastical society. Canon is derived from /rawln', i. e. a rule or practical direction (not to speak of the other meanings of the word, such as list or catalogue), a term whicn soon acquired an exclusively ecclesiastical significi^ tion. In the fourth century it was applied to the ordinances of the councils, and thus contrasted with the word vf>pjoi, the ordinances of the civil authori- ties; the compound word **Nomocanon" was given to those collections of regulations in which the laws for- mulated by the two authorities on ecclesiastical mat- ters were to be foimd side by side. At an early period we meet with expressions referring to the body of ecclesiastical legislation then in process of formation: canoneSf ordo canonicus, sanctio carumica; but the ex- pression "canon law'* Ot** canonicum) becomes cur- rent only about the beginning of the twelfth century, being used in contract with the "civil law" Qus