[Question:]{.underline} Are there such things as purely penal laws?
[Answer:]{.underline} The question of the existence of purely penal laws is one that is debated. A distinction is made between a law which binds in conscience, a moral law, and a law to the infraction of which a penalty is attached, a penal law. All agree that the vast majority of laws are mixed, both moral and penal. The question here is whether there exist laws that are purely penal, that we must observe because there is a penalty attached to breaking them, which means that we ought prudently to keep then if there is any chance of getting caught, but which we are not obliged in conscience to observe. This possibility of purely penal laws is spoken of concerning such civil laws as speeding laws, seat belt laws, parking rules, customs and gaming laws and the like. There is a frequent and common estimation among many people that such laws do not really bind in conscience, and that consequently, it is quite permissible to break them, and not a sin, but that simply if we are caught we must pay the penalty, whatever it is. If this were the case, it certainly would easily calm our conscience in such cases.
St. Thomas Aquinas did not consider purely penal laws as a possibility. As far as he is concerned, a law which is a law is by definition just, and consequently obliges in conscience. If it does not oblige in conscience, it is because it is not just, and consequently it is not a law. This is his teaching in the Summa Ia IIae Q. 96, a.4, answering the question as to whether or not human law bins a man in conscience: “Laws framed by man are either just or unjust. If they be just, they have the power of binding in conscience, from the eternal law whence they are derived“. Note that the power of binding in conscience does not come from the intention of the legislator, but from God`s eternal law. Consequently, even if the legislator does not intend to impose a moral obligation, and even if the majority of the people do not perceive a moral obligation, it does not at all follow that there is no such obligation. He then considers the two things necessary for a law to be just, namely that it is ordained to the common good, and secondly that the burdens of the law are laid on the subjects “according to an equality of proportion and with a view to the common good.“ Hence his conclusion: `Such laws as these, which impose proportionate burdens, are just and binding in conscience, and are legal laws.“
However, the more recent (but traditional) moral theologians all speak at least of the possibility of purely penal laws. Their argument is that when the state makes such laws as customs, gambling laws, speed limits, hunting laws, laws to protect the environment, copyright laws and the like, it is not pretending to impose any moral obligation, but simply to impose a punishment if one gets caught. However, the argument is not convincing. Common sense indicates that if they are just laws, truly for the common good, then there is at least some kind of moral obligation to them, and if they are not truly for the common good, then they are not laws at all. Moreover, official government propaganda in every state certainly intends to present such laws as if they impose a moral obligation, with the implication that one would be considered a bad citizen for refusing to abide by them. Further, as Merkelbach points out (Summa Th. Mor. I, p. 258), even if it be maintained that there is a purely penal law, there will in general be accidentally or consequentially some fault on account of the scandal given, or danger of harm to other individuals and their rights. In practice, it really always comes down to the same thing as saying that there are no purely penal laws.
However, even if it be admitted that there are no purely penal laws, it must nevertheless be affirmed that the matter involved in such civil laws, even those that are just, is often very light, and insignificantly so. For example, speeding but doing it in a safe way is of miniscule importance. Frequently also such laws are unjust, since they are excessive. This would apply to some speed limits, parking limitations, customs duties for personal items etc., in which case there would be no fault in breaking them. The argument given in favor of purely penal laws is that this is the common estimation of the people. This I dispute. It is the common estimation of the people that unjust laws need not be observed (e.g. prohibition of reasonable cutting of trees on one`s own property), and that laws that are about very light matters or inconsequential matters are of no great moral importance. Moreover an equitable civil authority will allow a certain amount of tolerance for many such laws, such as speeding laws. Within the realms of civil tolerance there is manifestly no fault. However, laws prohibiting, for example drink driving are manifestly necessary for the common good, and it is certainly the common estimation of the people that they bind in conscience.
In conclusion, the concept of purely penal laws is one which empties out the fundamental relationship of all human laws to the natural law, and to the Eternal law in God`s plan. A man of delicate conscience will not readily accept such a concept, as if it were possible to separate morality from civic duty, nor will be easily be influence by the lax conscience of the common estimation of the people that has lost all sense of the common good and considers as moral what can be done with impunity. Rather, striving for integrity in his life as a Catholic, he will unite his civil and moral life into one, and strive to accomplish what is most perfect for the common good, refusing to give scandal to those who rightly respect just civil laws.
Answered by Father Peter Scott, SSPX.