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Laws, Conflict of

LAWS, CONFLICT OF

Conflict of laws is a clashing of the demands of one law with those of another. Strictly speaking, no true conflict of laws is possible; and laws, like rights, are not subject to collision. This follows from the fact that law is a dictate or ordinance of reason, and right reason cannot contradict itself. When two laws are in apparent conflict, one will be more authoritative than the other; and the less authoritative law ceases to be an ordinance of reason and to that extent becomes, in effect, no law. In a case of apparent collision of laws, therefore, the conflict should be resolved by determining which of the conflicting obligations is superior to the other, and the superior obligation should be deemed to prevail and the lesser to yield before it. If it is impossible to discover which obligation is superior, a person can in good conscience give priority to whichever obligation he pleases, for the conflicting law in that case would be doubtful, and a doubtful law does not oblige.

When precepts in conflict pertain to different categories of law, the precept of a higher law prevails over that of a lower law. Thus, the natural law takes precedence over positive law, divine positive law over human law, and ecclesiastical over civil law. Although a conflict of civil and ecclesiastical law is possible, troublesome occurrences of it are infrequent under contemporary circumstances. Civil governments for the most part seek to avoid making laws regarding religious matters, and the Church abstains from legislation about matters that rightly fall under civil authority. In matters of common interest, the Church generally shows a willingness, when nothing essential to its mission is concerned, to negotiate and to compromise in order to avoid a conflict. Rights that the Church claims are not commonly urged in face of existing conflict of law, as, for example, in the case of the clerics' immunity from military service [Codex iuris canonici (Graz 1955) c. 120.3]. Where the civil law forbids the marriage of a man and woman of different races or declares such marriages to be invalid, ecclesiastical authority can generally avoid difficulties with the civil authority by not exercising its right to perform the marriage and by advising the couple instead to go to another state where the ceremony can be legally performed.

When conflicting precepts pertain to the same category of law, the general rule is that the more important, urgent, or necessary law rightfully prevails. Thus a law defending a greater good has priority of claim over a law defending a lesser good, and obligations in justice should take precedence over obligations arising only from charity, except in cases in which a neighbor is in extreme need. This does not mean that justice is greater than charity. On the contrary, justice is among the prime requirements of charity, and the urgency of its claims depends upon the fact that charity demands that they be respected. When justice and charity are opposed in a context such as this, the sense is that a claim based upon justice (and charity) is more exigent than a looser claim based only on charity.

Bibliography: b. haring, The Law of Christ: Moral Theology for Priests and Laity, tr. e. g. kaiser, (Westminster, Md. 1961) 1:227285. r. f. begin, Natural Law and Positive Law in Catholic University of America Canon Law Studies 393; 1959). k. fuchs, Lex naturae: Zur Theologie des Naturrechts (Dusseldorf 1955). j. funk, De jure naturali transcendente jus positivum (Kaldenkirchen 1947). j. a. mchugh and c. j. callan, Moral Theology, rev. e. p. farrell, 2 v. (New York 1958) 1:284294.

[p. k. meagher]

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