Civil authorities make many bad laws. This is an inescapable part of the human condition.
The majority of bad laws are simple failures of prudence: These laws do not, for a wide variety of reasons, accomplish the ends for which they are enacted and, in the process of not accomplishing those ends, they do some ancillary harm, such as increasing costs or causing a certain measure of inconvenience. But as our culture shears away from a recognition of the natural law, statutes and regulations more often present us with a genuine moral dilemma.
Since laws which actually require citizens to do evil are becoming more common in our societies, we need to closely examine the nature of law to answer the question of when we may refuse to obey the law. I will divide this discussion into two parts. In this first part, we will consider the nature of human law.
What is human law?
In his insightful book Aquinas and Modern Science (which includes the social sciences), Gerard M. Verschuuren reminds us of St. Thomas Aquinas’ teaching on what makes human laws valid. A proper understanding is rooted in the four causes of all human law:
- The material cause is the public promulgation of the law;
- The efficient cause is the proper authority to promulgate the law;
- The final cause is the common good of the people;
- The formal cause is a precept of reason in accordance with the natural law.
In introducing these causes, it would have been more precise of me to ask “what constitutes a human law” rather than “what makes human laws valid”. When we think about human law in terms of its proper causes, we see immediately that if one of the causes is lacking, the human prescription we are examining cannot really be a law. Rather, lacking one of its causes, the putative law has failed to come into existence. Instead, we have a kind of legal imposture, which we may refer to as a law at times for reasons of linguistic convenience.
An example of this more accurate understanding is found in the traditional axiom that any human law which violates the natural law is null and void—which really means, of course, that it is not a law. This human prescription in question may have been promulgated as what we call “positive law” and may now be “on the books”. The courts may recognize it as law and adjudicate cases accordingly. The government may punish violations of this alleged law. But it is not a law and, in consequence, it cannot bind.
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