Art. 4: HUMAN LAW
(_Summa Theologica_, I-II, qq. 95-97.)
370. Definition.—Since human perversity often needs a check in regulations that are not expressly contained in the Natural or in the Divine Law, other laws must be made by society, drawn from those higher laws as conclusions or added to them as determinations, in order to meet special circumstances and necessities.
371. Division of Human Laws.-Human laws are variously divided.
(a) According to the difference of legislators, laws are either ecclesiastical or civil.
b) According to their mode of derivation from the Natural Law, laws belong either to the law of nations (_jus gentium_) or to civil law. To the _jus gentium_ belong those laws which are derived from the Natural Law as conclusions from premises, e.g., the right to private property without which men cannot live peacefully in society. To civil law belongs whatever is derived from Natural Law by way of positive determination by a legislator; e.g., Natural Law dictates that the evil-doer be punished; but that the punishment take a particular form, imprisonment, exile, death, is a determination depending upon the will of the legislator.
The _jus gentium_ is not international law which derives its force and sanction from the free will of the legislator. The law of nations is common to all men and derives its force from the conviction of men that such a law is demanded for the good of mankind. It is not a secondary precept of the Natural Law which is derived from the primary precepts necessarily. Rather it is based upon a contingent set of circumstances; it does not spring from man’s nature absolutely considered, but from the way in which man acts and reacts in his society.
(c) According to the difference of their objects, laws are either affirmative (i.e., preceptive) or negative (i.e., prohibitive). An affirmative law obliges always, but not for every occasion; a negative law obliges always, and for every occasion. Example: The Third and Fourth Commandments are always in force, but it is not necessary to elicit a positive act of compliance at every instant. The other Commandments, which are negative, are not only in force always, but it is necessary at every instant to omit what they forbid.
(d) According to the obligation which they impose, laws are either moral, penal, or moral-penal. Moral laws oblige under pain of sin, penal laws under pain of punishment, moral-penal laws under pain of both.
(e) According to their inclusiveness, laws are either personal or territorial. The former affect the person for whom the law is made, and oblige him even when he is outside the territory of the lawgiver. The latter affect the territory, and hence do not oblige a subject when he is outside the territory affected by the law.
(f) According to their effect, prohibitive laws are either merely prohibitive or irritant. The former make what is forbidden illegal, the latter make it also void.
372. Qualities.—The objects or content of human law must be of such a character: (a) that they do not conflict with the Natural or the Divine Law; (b) that they be beneficial to the community for which they are made.
373. Laws fail to be of public benefit in such cases as the following: (a) if they are made without a broad view of the public good, which has regard for different classes of people and various interests, and which provides for the future as well as for the present; (b) if, losing sight of the fact that the majority are not perfect in virtue, the lawgivers require so much that the law falls into contempt, and graver evils result than would have happened otherwise. Hence, it is advisable that human laws confine their prohibitions to graver misdeeds, especially those that are harmful to others and to society, and restrict their commands to such good acts as promote the common weal. Multiplicity of laws, excessive penalties for minor offenses, cruel and unusual sanctions, lead to lawlessness.
374. Human laws should not prescribe what is too difficult.
(a) They should not prescribe heroic virtue, unless the common safety demands it, or a subject has voluntarily obliged himself to it. Example: Soldiers in war and pastors in time of pestilence must expose themselves to danger of death; but for ordinary occasions the law should not oblige one to risk one’s life or other great good.
(b) They should not prescribe agreement with the mind of the legislator or a virtuous performance of what is prescribed, unless the thing ordered itself demands this. Examples: The law of annual Confession and of the Easter Communion requires, not only that these Sacraments be received, but that they be received worthily, for an unworthy Confession is no Sacrament, and an unworthy Communion does not satisfy the command of Christ, of which the Church command is but a determination. On the other hand, the Lenten fast observed by one who is not in the state of grace is an act good in itself and satisfies the law. He who hears Mass on a holyday, not knowing that it is a holyday, satisfies the obligation, though he had no intention of fulfilling it.
375. Obligation of Human Laws.—All human laws that are just, whether they be ecclesiastical or civil, made by believers in God or unbelievers, are obligatory in conscience, (a) From the beginning the Church has made laws and imposed them as obligatory (Acts, xv. 29; I Cor., vi. 4; I Cor., xi. 5; I Tim., v. 9-12), and has recognized as obligatory the laws of the State, without regard to the moral or religious qualifications of the rulers (I Peter, ii. 13-16; Rom., xiii. 1-7).
(b) Human laws are necessary. The Natural Law does not prescribe definite penalties, while the Positive Divine Law prescribes only such as are remote and invisible; and hence, if there were no human laws holding out the threat of determined and present punishments, the Divine laws would be contemned. Moreover, since the higher laws are sometimes unknown, or prescribe no time, place or manner of accomplishment, or do not command things that would be useful for their observance, it is necessary that there be laws made by man to secure the better knowledge and fulfillment of the laws given by God Himself.
376. A human law is unjust in two ways:
(a) if opposed to the rights of God. Examples: The command of Pharaoh that the Hebrew male children be murdered (Exod., i. 17), the command of Antiochus that his subjects sacrifice to idols (I Mach., ii. 16-20), the command of the Sanhedrin that the Apostles should cease to preach (Acts, v. 29);
(b) if opposed to the rights of man. This happens in three ways: First, when the purpose of the law is not the common good, as when the lawgiver seeks only his own profit or glory; secondly, when the maker of the law has not the requisite authority; thirdly, when the law itself, although for the common good and made by competent authority, does not distribute burdens equally or reasonably among the people. Examples: Achab and Jezabel, in the affair of the vineyard of Naboth, had in view not the public, but their own private benefit (III Kings, xvi). The sentence of death pronounced on our Lord by the Sanhedrin was illegal, because, among other reasons, the body was not assembled according to law, and hence had no authority to give sentence. The commands given the Israelites by Pharaoh (Exod., v. 18), and to their subjects by Oriental despots (I Kings, viii), were unjust, because the former discriminated against the Israelites, and the latter bore down too heavily on all the people. The former civil laws that prescribed the same penalty of hanging for a slight misdemeanor (such as the theft of a loaf of bread by a boy) as for the capital crimes of piracy or murder, the Stamp Act of George III, and some modern laws that sentence to life imprisonment those who have been four times convicted of slight offenses, are more recent examples of unjust laws.
377. Obedience to unjust laws is not obligatory in the following cases. (a) If a law is opposed to the rights of God, it is not lawful to do what that law commands or permits, nor to omit what it forbids. Examples: If a law permits one to practise polygamy, or commands one to blaspheme religion, one may not use the permission or obey. If a law forbids one to give or receive Baptism, it has no force. (b) If a law is certainly opposed to the rights of man in any of the three ways mentioned in the previous paragraph (376, b), it does not of itself oblige in conscience, since it lacks some essential condition of a true law, and even the consent of the majority or of all does not make it just. However, it may oblige accidentally, on account of the greater evils that would follow on disobedience, such as scandal, civil disturbances, etc. The duty of subjects is to remonstrate against such a law and to work for its repeal.
378. The obligation of all laws is not the same in kind, or degree. (a) Moral laws oblige one to do what is commanded or to omit what is forbidden, as a duty owed in conscience; hence, he who violates a law of this kind is guilty of moral fault. Penal laws oblige one to follow what they prescribe, if one would be free from guilt before the law and not liable in conscience to the penalty prescribed; hence, he who violates a penal law is guilty of juridical fault, and, if he further illegally resists the penalty, he becomes guilty also of moral fault. (b) Moral laws are not all of the same obligatory force, some of them obliging under grave sin, others under venial sin.
379. The following human laws are recognized as moral laws: (a) ecclesiastical laws, with few exceptions; (b) civil laws that confirm the Eternal or Divine Law, or that pertain directly to the common welfare, such as the laws that determine the duties of public officials, the rights of inheritance, etc.
380. The following human laws are generally regarded as merely penal: (a) ecclesiastical laws which expressly state that their observance is not required under pain of sin (e.g., the statutes of many Religious Orders); (b) civil laws of minor importance, or which the legislator imposes as a purely civil duty (e.g., some traffic regulations).
381. Moral laws oblige under grave sin if the two following conditions are present: (a) if the thing prescribed by the law is of great importance, because of its nature or circumstances; (b) if the lawgiver intended to impose a grave obligation.
382. A matter of light moment cannot be made the object of a law that binds under grave sin, for this would impose an intolerable burden, and would thus be contrary to the common good. What is unimportant in itself, however, may become important on account of its purpose or other circumstance.
383. The intention of the legislator to impose a grave moral obligation is recognized either: (a) from his own declaration, as when a church law is commanded under threat of the divine judgment; or (b) from circumstances that indicate such an intention, such as the gravity of the subject-matter of the law or the kind of penalty it prescribes, the general opinion of authorities, or the common practice of the community.
384. By obliging to the observance of what they command and the avoidance of what they forbid, laws indirectly oblige to what is necessary for such obedience. (a) Hence, the law obliges one to make use of the ordinary means for its fulfillment. Examples: He who has not used ordinary diligence to know the law, sins against the law if he violates its prescriptions. He who eats meat on a day of abstinence, because he neglected to provide himself with other food, is guilty of sin. (b) The law obliges one to use sufficient diligence in removing impediments to its fulfillment or dangers of its violation. Examples: The law of hearing Mass on Sunday obliges one not to stay up so late on Saturday that fulfillment will be impossible. The law of fasting obliges one to avoid dangerous occasions of its violation.
385. Interpretation.—Though laws are carefully framed as to language, doubts about their meaning will often arise—in ordinary cases, because of lack of understanding or changes of conditions, and in extraordinary cases, because from the circumstances the law seems inapplicable. Hence the need of explaining the law, which is done in ordinary cases by interpretation, in extraordinary cases by _epieikeia_ (see 411 sqq.).
386. Interpretation is a genuine explanation of the law, that is, one that states the meaning of the words of the law according to the intention the lawgiver had in mind when he chose them. It is of various kinds.
(a) According to the author from whom it proceeds, interpretation is authentic, if it comes from the lawgiver himself or from another authorized by him; it is usual, if it comes from common usage (i.e., from the manner in which the law is customarily observed); it is doctrinal, if it is made by learned men according to the rules of correct exegesis.
(b) According to the effect, interpretation is declarative, if it clears up what was obscure in the law; it is supplementary, if it extends or limits the law, by adding to or subtracting from the cases included under it.
(c) According to the manner in which it is made, interpretation is strict or wide, Strict interpretation gives to a word of law that least inclusive and most proper signification it bears (e.g., it understands “son” to stand for son by birth). Wide interpretation gives to a word a more inclusive and less proper signification (e.g., it understands “son” to stand for son by birth or by adoption).
387. Those Subject to Law.—Only those are morally obliged to observe human law who are subjects of the lawgiver and who have the use of reason. (a) Those who are not subjects in any sense are not bound, for to obligate by law is an act of authority and jurisdiction; (b) those who have not reached the age of reason, or who are habitually insane, are not themselves morally bound, since they are incapable of moral obligation. Of course, they may be restrained as to acts, and their rights may be determined.
388. The lawgiver himself, even though not subject, is held to observe the laws he makes. Thus: (a) if the lawmaking power resides in a legislative assembly, each legislator is subject to the body and hence to its laws; (b) if the lawmaking power is vested in an individual, he is not subject to the coactive force of his own laws, since he cannot punish himself; but he is subject to their directive force, inasmuch as the higher law of nature requires that the superior show good example by observing what he requires of others.
389. Change of Law.—The growth of knowledge and experience, or the change of social circumstances, requires now and then that human laws be improved or adapted to new conditions. But, since laws derive a great part of their influence from custom, they should not be changed unless the break with custom is compensated for by the urgent necessity of the new law, by its manifest advantage, or by the evident iniquity or harmfulness of the old law, In brief, the common good should be the norm by which to decide whether a law should be retained or changed.
390. Constitutional law, as being fundamental and organic, is more immutable than ordinary law. (a) If given to a society established according to the positive ordinance of a superior, it cannot be abrogated or modified by the legislative authority of that society, since this would be contrary to the will of the founder. Hence, the Church has no power to change the fundamental constitution given her by Christ, who prescribed the religious society as established by Him to be necessary. (b) If a constitutional law is given to a society which is perfect and necessary from the law of nature, such constitution can be modified for extraordinary reasons and in the special ways provided (e.g., by amendments approved by the people).
391. The Law of Custom.—Custom (i.e., a long-continued practice that has acquired binding force) is able to establish a new law or to do away with an old law. For the will of the lawgiver is manifested not only by words, as happens in the written law, but also and more clearly by repeated and continued acts, as happens in the case of the unwritten law of custom. In a democracy it is the consent of the people who follow the custom as law that imposes the obligation; in a monarchy it is the consent of the ruler who permits the custom.
392. With reference to their legal effects, there are three kinds of customs: (a) customs according to the law, which are those that confirm by use an existing law; in this way custom interprets law (see 386); (b) customs beside the law, which are those that introduce a new obligation that is not prescribed by any written law; in this way custom establishes law; (c) customs contrary to law, which are those that remove the obligation of a previous law; in this way custom repeals, at least in part, the law to which it is opposed.
393. Custom has not the power to establish or repeal a law, unless it possesses the requisites of law itself (see 285). Hence arise the following conditions:
(a) Since the exercise of the legislative power requires freedom, customs do not possess legal force unless they have been practised freely. Hence, a custom that has been established by force does not suffice;
(b) Since laws can be made only for perfect societies, customs have not the force of law, unless they are practised by a perfect society, or by a majority of its members who are representative. Hence, a custom observed by a family or by a minority of the voters in a body that has its own jurisprudence has not the status of law;
(c) Since laws must proceed from competent authority, customs do not make or unmake law, unless they have the approval of the ruling power. In a society where the legislative function rests with the people (e.g., in the ancient democracy of Athens), the fact that they follow a custom with the purpose of enacting it into law or of using it against an existing law is sufficient approval. But if the supreme power is not with the multitude, their customs do not obtain the force of legislative acts, unless approved by the constituted authority;
(d) Since law needs to be promulgated, a custom, to have the effect of law, must be practised by public acts through which it becomes known to the people as a whole.
394. Customs that have the other requisite conditions begin to be obligatory or derogatory as soon as the approval of competent authority is had. (a) If the approval is given expressly, the custom has the force of law at once; (b) if it is given tacitly, inasmuch as the lawgiver, knowing the custom and being under no restraint, does not disapprove, the custom has the force of law as soon as tacit consent is recognized by the learned and prudent; (c) if it is given by the law itself, which explicitly accepts reasonable customs, the custom has the force of law when it has lasted for ten years, or other length of time prescribed.
395. If the superior disapproves of a custom or maintains diplomatic silence for fear of greater evils, his consent is withheld, and the custom cannot be deemed as of legal force.
396. There are other conditions necessary that a custom may acquire the force of law. (a) Since a law is an ordinance knowingly imposed by the will of the legislator, a custom does not constitute a law if it is followed through the erroneous conviction that it is already a law, or if there is nothing to indicate a will to make it obligatory. Signs of the intention to raise a custom to the dignity of a law are the punishment of transgressors of the custom, the observance of the custom even at the cost of great inconvenience, the opinion of the good that it should be followed, etc. (b) Since a law cannot prescribe except what is reasonable and for the common good, a practice opposed to the Natural or Divine Law, or expressly reprobated by written law as an abuse, or one that is injurious to the welfare of the community, cannot become unwritten law through custom.
397. There are special conditions in order that a custom may do away with an existing law. (a) A written law is not repealed unless the legislator wills to take away its obligation, and hence desuetude or a custom contrary to law does not abrogate a law unless it manifests a purpose not to be obligated by what the law prescribes. This it does if the whole people regard a certain law as a dead letter, or feel that circumstances or the common welfare require the opposite of what the law requires, and have no scruple in acting uniformly according to this conviction.
(b) A written law is not repealed, if it is immutable, or if a change would be prejudicial to the common interest; similarly, therefore, a custom cannot abolish a law, unless this law is one that can be abrogated by human acts, and that is not essential to the public good. Hence, customs contrary to the Commandments or to the Law of Christ, customs that are expressly condemned in Canon Law as corruptions, customs that encourage lawlessness or afford occasions of sin, can never do away with a law, no matter how long or by how many they are practised.
398. Those who start a custom contrary to law are sometimes in good faith, and hence are not guilty of disobedience. (a) It may be that they are in ignorance of the law, but have the interpretative will not to be bound by it; (b) it may be that they know the law, but sincerely think that, on account of conditions, it has ceased of itself.
399. Even when a custom has been started in bad faith, it may continue through good faith, and so become not a violation, but an abrogation of the law. Changed conditions may make the law useless or harmful; or the very fact that it is no longer observed may make it too difficult to enforce.
400. Today customs do not so often attain the force of law. Moreover, so difficult is it to know whether any custom has all the qualities necessary for establishing, modifying, or abrogating a law that only an expert is competent to judge in this matter.
401. Dispensation.—Human law has not the immutability of the Divine Law. Hence, not only may it be changed, but it may also be dispensed. Dispensation is a relaxation of the positive law made for a particular case by him who has the competent authority.
(a) It is a relaxation of the law—that is, it takes away the obligation of the law. Thus, it differs from permission, which is fulfillment of what is conditionally allowed by the law.
(b) Dispensation is made for a particular case—that is, it is granted when the provisions of the law, though beneficial to the community as a whole, are not suitable for a particular person or case. Thus, it differs, first, from abrogation and derogation, which remove the obligation of the whole or a part of the law for the entire community; and, secondly, from privilege, which is granted permanently as a private law.
(c) Dispensation is given by competent authority—that is, by the legislator or others who have the lawful power. Thus, it differs from _epieikeia_ and private interpretation, which are made by those who have no power to dispense.
(d) Dispensation is a relaxation of the positive law, for since the Natural Law is immutable (see 305), no dispensation can be given from its requirements. Thus, dispensation differs from the official declaration or interpretation of the Natural or Divine Law (see 315).
402. Those who have the power to dispense from a law are the lawgiver and others duly authorized. (a) The lawgiver himself can dispense as follows: in his own laws, since he was able to make them; in the laws of his predecessors, since his authority is equal to theirs; in the laws of his inferiors, since they are his subordinates. (b) Others can dispense who have received from the law, from their superior, or from custom the necessary authority to dispense.
403. Those Who May Be Dispensed from a Law.—(a) Since dispensation is an act of jurisdiction, only those can be dispensed who are in some way subject to the dispenser. Since, however, the jurisdiction used in dispensing does not impose an obligation but grants a favor, it is held that he who has the power to dispense others may also dispense himself, if his power is not restricted. (b) Since dispensation is an act of authority, it may be exercised even in favor of one who is absent, or ignorant of the dispensation or unwilling to accept it. But, since as a rule favors should not be forced, the validity of a dispensation generally depends upon the consent of the one dispensed.
404. The power of dispensing has for its end the common good, and therefore it must be exercised: (a) faith fully, that is, not for reasons of private interest or friendship; (b) prudently, that is with knowledge of the case and with judgment that there are sufficient reasons for dispensation.
405. In order that the reason for a dispensation be sufficient, it is not required that it be so grave as to constitute a physical or moral impossibility of keeping the law, since the obligation of the law ceases in the face of impossibility (see 317, 487), without the need of dispensation. Hence, lesser reasons suffice for dispensation.
406. A dispensation must be granted whenever the law itself or justice requires it. The following cases are usually given: (a) when there exists a reason that requires, according to law, that a dispensation be granted; (b) when the common good, or the spiritual good of an individual, or his protection from some considerable evil, demands the concession of a dispensation.
407. A dispensation may be either granted or denied, when the case does not demand it and the superior after careful investigation is not certain whether the reason is sufficient or insufficient; otherwise, a greater responsibility would rest on the superior than the law can be thought to impose—viz., that of attaining certainty where it cannot easily be had.
408. He who dispenses without a sufficient reason is guilty of the sin of favoritism, and is responsible for the discontent and quarrels that result. He is guilty of grave sin thus: (a) if serious scandal or other inconvenience is caused, even when the dispenser is the lawgiver himself; (b) if the law obliges under grave sin and the dispensation is not granted by the lawgiver, but by an inferior who usurps the right to dispense.
409. The subject of dispensation is guilty of sin: (a) if he asks a dispensation when he knows for certain that there is no sufficient reason for it; (b) if, having been denied a dispensation, even though unjustly, he acts against the law; or if he knowingly makes use of an invalid or expired dispensation.
410. Sufficient reasons for a dispensation can be reduced to two classes: (a) private welfare (e.g., the difficulty of the law for the petitioner, a notable benefit he will receive through the dispensation, etc.); (b) public welfare (e.g., the benefits that are secured to the community, or the evils that are avoided through the dispensation).
411. _Epieikeia_.—Since human laws regulate particular and contingent cases according to what usually happens, and since they must therefore be expressed in general terms, exceptional cases will occur that fall under the law, if we consider only the general wording of its text, but that do not fall under the law, if we consider the purpose of the lawgiver, who never foresaw the exceptional cases and would have made different provision for them, had he foreseen them. In such exceptional cases legalism insists on blind obedience to the law-books, but the higher justice of _epieikeia_ or equity calls for obedience to the lawgiver himself as intending the common welfare and fair treatment of the rights of each person.
412. _Epieikeia_ may be defined, therefore, as a moderation of the words of the law where in an extraordinary case, on account of their generality, they do not represent the mind of the lawgiver; which moderation must be made in the manner in which the lawgiver himself would have made it, had he thought of the case, or would make it now, were he consulted. Hence, _epieikeia_ differs from the various causes that take away the obligation of a law, for it supposes the non-existence of obligation from the beginning and non-comprehension in the law.
Thus: (a) it is not revocation, desuetude, restrictive interpretation, or dispensation; (b) it is not cessation on account of impossibility; (c) it is not presumed permission or self-dispensation.
413. In its use _epieikeia_ is at once lawful and dangerous.
(a) It is lawful, for it defends the common good, the judgment of conscience, the rights of individuals from subjection to a written document, and from oppression by the abuse of power;
(b) it is dangerous, for it rests on the judgment of the individual, which is prone to decide in his own favor to the detriment of the common good as well as of self.
414. _Epieikeia_ by its very nature imposes certain limits on its use.
(a) It is based on the fact that a certain case is not comprehended in a law, because the legislator did not foresee it.
Hence, _epieikeia_ is not applicable to the Divine Law; for the Divine Lawgiver foresaw all cases that could arise, and so excluded all exceptions (see 315). This is clear as regards the Ten Commandments and other precepts of the Natural Law, since they deal with what is intrinsically good or bad, and are unchangeable (see 307). But it applies also to the prescriptions of the Positive Law of God, and apparent cases of _epieikeia_, such as the eating of the loaves of proposition by David (I Kings, xxi. 6), can be explained by the cessation of law or divine dispensation. Examples: One may not excuse certain modern forms of cheating on the plea that they were not thought of when the Decalogue was given. One may not omit Baptism on the ground that Christ Himself would have excused from it, had He foreseen the circumstances.
(b) _Epieikeia_ is based on the principle that the words of a law must be subordinated to the common good and justice. Hence, it is not applicable to those laws whose universal observance is demanded by the common good—that is, to irritant laws. Any hardship suffered by an individual through the effect of such laws is small in comparison with the injury that would be done to the common welfare if there were any cases not comprehended in such laws; for irritant laws are the norms for judging the validity of contracts and other acts, and public; security demands that they be uniform and certain. Example: One may not contract marriage with a diriment impediment, on the plea that the Church would not wish the impediments to oblige under the serious inconvenience that exists in one’s case.
415. The dangers of _epieikeia_ also place limitations on its use.
(a) There is the danger that one may be wrong in judging that the lawgiver did not wish to include a case under his law. If this is not certain, one should investigate to the best of one’s ability, and have recourse, if possible, to the legislator or his representative for a declaration or dispensation. It is never lawful to use _epieikeia_ without reasonable certainty that the legislator would not wish the law to apply here and now.
(b) There is the danger that one may be in bad faith in deciding that the common good or justice requires the use of _epieikeia_; the motive in reality may be self-interest or escape from obligation, Hence, a person should not use _epieikeia_ except in necessity, when he is thrown on his own resources and must decide for himself; and, even then, he must be sure that he acts from sincerity and disinterestedness.
416. Cases in which the use of _epieikeia_ is lawful are the following:
(a) Epieikeia in a wide sense—that is, a benign interpretation made by a private individual that a particular case is not comprehended in the intention of the lawgiver, because the latter had not the power to include it—may be used for all cases in which the opposite interpretation would set the law up in opposition to the common welfare or would work injustice to individuals. Example: The law that goods borrowed must be returned to their owners yields to _epieikeia_, if there is question of putting weapons into the hands of one who would use them against the public security or for the commission of murder;
(b) _Epieikeia_ in a strict sense—that is, the judgment that a particular case is not included in the intention of the lawgiver, because the latter had not the wish to include it—may be used for all those cases in which the opposite interpretation would suppose in the lawgiver a severity that is not likely. “The rigor of the law may be extreme injustice” (Cicero, _De Officiis_, I, 10). Example: Titus has the opportunity to make a notable sum of money on a Sunday morning, but cannot make use of the opportunity without missing Mass that day. Caius on a fast day feels well, but is tired and will be not a little inconvenienced if he fasts. Both Titus and Caius may use _epieikeia_, for the Church does not wish to be unkind, nor, generally speaking, to have her laws oblige rigorously and for every case.
417. Though all human law is subject to _epieikeia_, the practice of the civil law does not always allow it. (a) Action on individual responsibility makes one guilty of technical violation. Example: Balbus, fearing that his house may be robbed or he himself assaulted, borrows a revolver and practises shooting. He had not time to get the necessary permit, but argued that necessity knows no law. But, if he is arrested, the court may hold him guilty of violating the law. (b) Action in a court of equity, however, will give relief for cases not provided for in law. Example: One may obtain an order from the court restraining a neighbor from injury, when the law itself gives only the right to recover damages for injury done.