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Chapter 11: The Moral Authority of Law


In one sense, authority is competence to make judgments which reasonable persons of lesser competence will accept as probably or certainly true. In another sense, it is a social capacity to give directions which generate a moral duty to obey; this is the authority of law. (Note, however, that the authority of law is not the only source of a duty to carry out another’s wishes. Such a duty also arises in other relationships ranging from marriage to the freely contracted relationship of employee to employer.)

Sometimes, as in the case of criminal law, the directions of authorities call attention to already-existing moral obligations. Here the backing of an obligation by authority generates an additional moral duty—to obey. In other cases, authorities direct something which would not otherwise be a moral obligation. Here the duty to obey is the only moral duty.

There are two distinct bases for the duty to obey. First, those in a community who are in a better position to make decisions have a duty to do so, while the others have a duty to act upon their decisions. Second, in societies created by a common commitment, members are obliged by their commitment to cooperate for the sake of goods, and fairness requires that each do his or her share. In neither case, however, is the duty to obey absolute. If one is convinced that what authority directs cannot be done without wrongdoing, one should not obey.

Generally it is clear how integral human fulfillment itself requires obedience to divine precepts, but in the case of certain norms revelation is required. These latter make up what is called “divine positive law.” Here the basis for obedience lies in the human good of religion. Interpersonal harmony of any kind always involves compliance with the wishes of others, and this is no less true of our relationship with God. Furthermore, awareness of our radical and unique dependence on God underlines the fact that only he is in a position to make certain decisions for the life we share with him—the decisions which constitute divine positive law.

The law of civil society can be divided in various ways. (Many societies besides civil societies also make laws in the sense considered here, though they call them by other names such as “policies” or “rules.”) Constitutional law articulates the common and accepted plan by which a community exists. Civil law regulates private affairs according to the public purpose of mutual justice and common peace. Criminal law shapes a public response to certain acts which would be immoral even if they were not illegal. Regulatory law directs the common life of the community at large, especially the government and its agencies.

The members of a civil society have a nonabsolute moral duty to obey purely regulative laws to the extent the society is truly a community. However, the duty to obey such laws can be qualified in two ways: first, if a law lacks authority due to some defect (for example, it requires something inconsistent with the seventh or eighth mode of responsibility) or in the way it was arrived at; second, if a law is inapplicable in a particular case. Lacking moral certitude that a law is without moral authority or is inapplicable, however, an upright person will obey it. The too-ready resort to what is called “epikeia” is an abuse; violating the letter of the law to preserve its spirit is only justified if one can say sincerely that the lawmaking authority would want one to make this exception (not just consider it reasonable) if it knew the circumstances.

The Church’s teaching authority must be distinguished from its governing authority. The former is the capacity of the apostles and their successors to make judgments in matters of faith and morals. The latter is the capacity of these same persons, acting as pastors of the Church, to direct all of her members in their common life. When a Catholic violates a moral norm taught by the Church, the act is wrong not as disobedient but because it is at odds with a moral truth and the human good this truth represents. When a Catholic violates a Church law, the act is wrong because it is disobedient. The Church’s teaching authority cannot change what it teaches, but the Church’s pastoral authority can alter the directions it gives, except insofar as these directions themselves express moral truth or divine positive law.

In general, what has been said about the duty to obey the laws of civil societies applies also to the laws of the Church. However, the Church’s constitutional law is divine positive law; all Church law rests on this foundation and shares its sacred character. Moreover, the act of faith is the baptismal commitment by which one shares in the life of the Church; this baptismal commitment grounds the duty to obey the Church’s law, and deliberate disobedience is thus a sin against faith. Considering the source of Church laws, their subject matter, and the care with which they are made, it is hardly likely that they will be defective by requiring anything immoral or issuing from an abuse of authority. Nor should it be assumed too quickly that the conditions are fulfilled which might justify setting aside a law of the Church as inapplicable—for example, by using epikeia.