The Moral Obligation of Paying Just Taxes - M. Crowe
The Moral Obligation of Paying Just Taxes - M. Crowe
A DISSERTATION
r
ilmprimi Potest:
Michael J. Gear1n, C.SS.R., J.C.D.,
Superior Provincialis.
Xiljtl ©bstat:
Franciscus J. Connell, C.SS.R., S.T.D.,
Censor Deputatus.
^Imprimatur:
fi& Michael J. Curley, D.D.,
Archiepiscopus Ballimoriensis-Washingtoniensis.
COPYRIGHT, 1944
THE CATHOLIC UNIVERSITY OF AMERICA PRESS
Printed by
The Paul1st Press
New York 19, N. Y.
37?
H5
TO
OUR MOTHER OF GOOD COUNSEL
I
-
Exch.
Library
Catholic Univ.
ol America
anr « 1945
TABLE OF CONTENTS
PAGE
INTRODUCTION ix
CHAPTER I
CHAPTER II
PAGE
II. The Opinion that All Tax Laws Oblige in Virtue
of Commutative Justice 42
CHAPTER III
PAGE
2. Criticism of the Theory that Tax Laws Bind in
Virtue of Commutative Justice 119
Thesis: The Theory that Tax Laws Bind in Virtue
of Commutative Justice Is Only Doubtfully
Probable 1 19
Proof: A. Analysis of the Intrinsic Arguments 119
1. The Contract Theory 119
(a) The Subject of the Proposed Contract 122
(b) The Matter of the Proposed Contract 124
(c) The Form of the Contract 126
2. The Argument Based on the Principle that
Expenses Legitimately Incurred in the
Name of Another, Must Be Borne by
that Other - 129
3. The Argument from the Right of Eminent
Domain 133
Proof: B. Analysis of the Extrinsic Arguments.... 136
1. The Argument from Scripture 136
2. The Authority of Theologians 136
PAGE
Praenotanda 151
(1) Tax Laws Bind in Conscience to the Act
Prescribed 151
(2) The Obligation of Paying Taxes Is Medi
ately an Obligation of Legal Justice.... 157
(3) The Immediate Obligation Most Probably
Does Not Flow from Commutative
Justice 158
(4) The Immediate Obligation of Paying Taxes
Is Probably an Obligation of Piety 160
CONCLUSION 164
BIBLIOGRAPHY 165
'
CHAPTER I
,.
Notion and Division of Taxes 3
* Supra, p. 3.
Notion and Division of Taxes 7
One city may base the division on the area of the land to be assessed ;
another may base it on the value of the land. Either method is an
attempt to divide the cost fairly among those people whose property
will benefit by the proposed improvement. Once the money has
been collected it cannot be used for any other purpose than the one
originally proposed. If the project is not carried out, the citizens
have the right to collect their money from the state.
As has been seen,12 the right to get the money back if the state
does not fulfill its duty is present also in contractual revenue and in
fees. But contractual revenue, fees and special assessments are not
to be confused on that account. In special assessments, the thing
paid for does not become the property of the ones who pay the
assessment—it remains state property. In contractual revenue and
in fees, those who pay receive something that becomes their own by
reason of the payment. These two latter classes differ because in
contractual payments the thing received is susceptible of exact meas
urement in terms of money, whereas in fees, the privilege received
cannot be accurately measured in terms of money.
3. Taxes. A detailed analysis of the notion and division of
taxes will be reserved for the following section. Here, it will simply
be noted that taxes are a part of public revenue and are distinct
from fees and special assessments. All three forms are species of
taxation in the wider sense and as such are easily distinguished from
contractual revenue on the one hand and from fines on the other.
What is common to the three classes is that they are compulsory
contributions levied for the support of the government or to defray
the expenses incurred for public purposes in general. Taxes differ
from fees and special assessments in that the element of special
benefit in taxes is entirely subordinate. By this is meant that a
tax is intended primarily for the common good and any particular
good that may result to a certain individual is merely an incidental
result, whereas in both fees and special assessments, there is an
intended particular good accruing to the individual. This specific
note, i. e., direction to the common good as to the primary end, is
present even in special taxes, such as gasoline taxes. At first sight,
^
Notion and Division of Taxes 11
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12 The Moral Obligation of Paying Just Taxes
PUBLIC REVENUE
Gratuitous Non-gratuitous
Contractual Non-contractual
y ^
Notion and Division of Taxes 13
civil law for the precise purpose of covering the public expenses of
the state." 21 Prummer makes the defect almost glaring by using
the words, "for the precise purpose." Merkelbach's definition is very
similar to Seligman's. He says: "Taxes are whatever the citizens
must pay to cover the common expenses of the state." 22 Damen
defines taxes as: "all those payments, especially of money which
the public authority obliges its subject to make to itself in order to
provide therewith for the good of the republic." 23 This definition
could be rectified somewhat by omitting the word "therewith." Lugo
is one of the few who seemed to have sensed that the purpose of
taxes might be wider than the mere raising of revenue. According
to him taxes are, "whatever the subjects or members of the state
must contribute for the common usefulness and for the public neces
sities." 24 It is clear from Lugo's explanation of the cause neces
sary for a just tax that he uses the term, "common usefulness" in
order to emphasize the fact that taxes may be raised not only for
things that are absolutely necessary for the common good but also
for things that are useful. Hence the assumption that he meant
anything else by the term is not justified. Nevertheless, his defini
tion does admit of an objective interpretation which would include
in the notion of a tax, customs, liquor taxes, etc., imposed for the
purpose of regulation.
The four theologians just quoted fail also to distinguish taxes
from fees and special assessments. This is evident from a compari
son of their definitions with the general definition of fees, special
assessments and taxes given by Seligman, who says that all three
forms are, "compulsory contributions levied for the support of the
government or to defray the expenses incurred for public purposes." 25
There is need then for an accurate definition of taxes. To fill
this need the following definition is suggested: A tax is a compul
*\
Notion and Division of Taxes 15
26 St. Alphonsus, Theologia MorcUis (ed. Gaude, Rome, 1907), III, n. 615;
Scavini, Theologiae Moralis Compendium (Milan, 1880), I, n. 335; Vives, Com
pendium Theologiae Moralis (Rome, 1904), n. 429.
--Rom. 13, 7: Reddite ergo omnibus debita: cui tributum, tributum:
cui vectigal, vectigal. St. Paul, of course, used the Greek cpoouc, and teXoc,
for "tributum" and "vectigal" respectively but the Greek terms conveyed the
same meanings.
28 Cf. Seligman, Essays in Taxation, p. 36 ; C. Bastable, "Finance," Ency
clopedia Britannica (11th ed. 1910-1911), X, p. 349.
20 Cf. Corpus Iuris Civilis, II, "Codex Iustinianus" (ed. Krueger, Berlin,
1929), 1. IV, tit. 61; Seligman, loc. cit.
30 Cf. Suarez, De Legibus (Naples, 1872), V, c. XIII, n. 2; Priimmer,
Man. Theol. Mor., I, n. 288.
31 E. Voit, Theologiae Moralis (Augustae Taurinorum, 1833), I, p. 372.
32 Louis Molina, De Justitia et Jure (Venice, 1611), tr. II, disp. 662.
"
16 The Moral Obligation of Paying Just Taxes
88 Loc. tit.
84 Loc. cit. Suarez is not the originator of this division as it is mentioned
by Navarrus, Commentarius de Lege Poenali, n. 47, in Opera Omnia (Venice,
1618), III, p. 685.
"Cor. Iur. Civ., I, "Digest" (ed. Krueger), 1. L, tit. 4.
86 Cf. Seligman, The Shifting and Incidence of Taxation (New York, 1932),
p. 125 ff.; Robert Murray Haig, "Taxation," Encyclopedia of Social Sciences
(New York, 1934), XIV, p. 533.
Notion and Division of Taxes 17
41 If the inheritance tax were merely a charge for a privilege it would con
tain the element of special benefit as found in fees. Cf. supra, p. 8.
42 J. Aertnys is one of the few theologians who mentions the idea of shift
ing in his explanation of the terms "direct" and indirect" tax. He says:
"... dicuntur autem indirecta, quia venditores, cum suas merces vendunt, in
pretio statuendo rationem habere debent tributorum, quae jam solverunt, et
idcirco haec tributa mercibus directe imposita, indirecta in emptores recidunt,"
Theologia Moralis (Tours, 1893), I, n. 377, p. 327. K. Wagner, Die sittlichen
Grundsdtze beziiglich der Steuerpflickt (Regensburg, 1906), p. 32, also mentions
shifting as the basis of the distinction.
43 Cf. Ency. Soc. Sti., loc. cit.
44 Constitution of the United States, art. 1, sec. 9, clause 4.
Notion and Division of Taxes 19
clear that the distinction between a direct and an indirect tax, as far
as the federal government is concerned, is based not on incidence,
i. e., shifting, but on the use and ownership of property. "A tax
levied on property because of its ownership is direct, one levied on
property because of its use is an excise duty or impost." *B What
ever may be the merits of this distinction in theory, in practice it is
not very helpful. Using the distinction as a basis, the court first
declared the income tax constitutional on the score that it was not
a direct tax.46 It was later decided that the income tax was a direct
tax and therefore unconstitutional since it was not apportioned ac
cording to the population.47 The inheritance tax is held to be an
indirect tax, contrary to the common opinion of economists.48
From what has been said it is evident that the division of taxes
into direct and indirect is not altogether satisfactory. According to
Seligman, and his opinion is rapidly gaining ground, the distinction
between direct and indirect taxes is not scientific but only collo
quial.49 Certainly the distinction drawn by the United States courts
is not scientific for property may be considered under three aspects,
not merely two as proposed by the judges.50 The courts contemplate
only the ownership and the use of property, leaving out of consid
eration the acquisition of property. The effect of this omission is
seen in the contradictory decisions concerning the classification of
income taxes. Furthermore, although ownership is so distinct from
use that one man may own what another uses, it is sometimes diffi
cult to distinguish the two in cases where the owner and the user
are the same person.
The explanation of the moralists also fails in certain cases. For
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24 The Moral Obligation of Paying Just Taxes
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Cf.
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CHAPTER II
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28 The Moral Obligation ' of Paying Just Taxes
I. The Opinion That All Tax Laws Are Merely Penal Laws
According to Damen, "A purely penal law is one that imposes
a penalty on those who do or omit something without prescribing
the doing or omission of that thing under moral guilt." 1 Merkel-
bach's definition brings out more clearly the exact nature of such
a law. According to him, a purely penal law is "one that does not
oblige in conscience to do what the law prescribes, but does oblige
in conscience not to resist the infliction of a penalty and to undergo
the penalty in case of a transgression." 2 The distinguishing feature
of a purely penal law is the absence of moral guilt (sin) except in
connection with the penalty. The object of the law may be disre
garded as far as conscience is concerned as long as one is willing
to undergo the penalty which may be inflicted for a violation of the
law. Many authors hold in principle, and most agree at least in
practice, that tax laws are purely penal laws.
1. Angelas (1411-1495). Blessed Angelus of Clavisio is one of
the earliest and indeed one of the most ardent exponents of the
view that tax laws do not oblige in conscience directly to the act of
paying taxes. Unfortunately, Angelus does not present his doctrine
as clearly as one would wish. He gives the principles governing the
obligation of paying taxes in his Summa Angelica under the title,
"Pedagium." 3 A "Pedagium" is a very restricted type of tax, being
defined as one that is imposed on those who pass through territory
specified by the prince or by one who has the necessary authority.
In the same article Angelus mentions and defines only two other par
ticular taxes, "Guidagium" and "Salinarium." However, it is cer
tain that Angelus intends to cover all types of taxes with the prin
ciples given in this place because under the title, "Vectigal," he
simply defines "vectigal" and "tributum" and then refers the reader
back to "Pedagium."
Angelus asks the question whether those who do not pay "peda-
gia" or "guidagia" commit sin and are bound to restitution.4 First,
he gives what he calls the common opinion, namely, that it is a sin
to defraud just taxes and in the event of a violation, restitution is
necessary. His own opinion is as follows: "But I say that when
those who impose these taxes do not provide for the common good,
for example, in caring for roads, bridges, the safety of people and
other things, according to their ability as they are bound to do, the
subjects do not sin if they evade the tax without lying and perjury,
nor are they bound to restitution." All that Angelus says here is
that when money collected in taxes is misused, the subjects do not
have to pay the tax. He then goes on to say: "Nor do I believe that
those sin who defraud taxes, even when the aforesaid (i. e., those who
impose the taxes) do provide for the common good." Angelus is
not speaking of all tax laws since the reason he gives for his opinion
limits it, as he himself points out later on. His argument is this:
"... these laws are usually worded thus,—we ordain (statuimus)
that everyone pay, etc., under penalty of falling into a crime com
mitted (sub pena cadendi in commissum) if he is found doing other
wise."
To understand the force of this argument it is necessary to con
sider what Angelus says about penal laws in general. He treats this
question under the title "Inobedientia." In answer to the question:
"Whether it is a sin to disobey a penal law?" Angelus makes a dis
tinction. Some laws contain two precepts, for example, "We order
that no one do a certain thing and whoever does the thing must pay
this or that penalty." 5 In this case it would be a sin to disobey
the law. But other penal laws contain only one precept, for example,
"If anyone does this thing, he must pay this penalty." Angelus
concludes: "... and thus from the form of the law, it would oblige
only to the penalty." But he adds this monitum which is often over
looked by those who quote him: "However, from the intention of the
legislator, it would oblige in conscience (i. e., to the act itself) if it
were disregarded for a light cause." 6
* Loc. at., n. 6.
sOp. oit., "Inobedientia."
*Ibid.
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30 The Moral Obligation of Paying Just Taxes
scandal." 10 Navarrus does not hold this extreme view but since
those who do hold it would certainly hold that human laws which
contain a penalty do not oblige to mortal sin, he can use those
authors' as an argument from authority.
So far Navarrus has not said anything which proves definitely
that he held all tax laws to be purely penal laws. He does claim
that the intention of the legislator can make laws purely penal, at
least to the exclusion of mortal sin, and that in a doubt, this inten
tion is to be presumed.
The treatise, Commentarius de Lege Poenali, is an unfinished
work but Suarez maintains that it sufficiently indicates that Navarrus
did hold tax laws to be purely penal.11 The treatise was written
principally against a work of Alfonse Castro, De Potestate Legis
Poenalis.12 After criticizing several points in Castro's treatise,
Navarrus states the opinion of Castro that those who defraud just
taxes are guilty of sin and are bound to make restitution.13 The
objections against the opinion are then presented in a tone which
seems to indicate that these arguments, i. e., against the opinion of
Castro, met the approval of Navarrus. But immediately following
this Navarrus says: "For the solution of this important question, I
say, first, etc.," showing that Navarrus has not yet committed him
self definitely to either side.14 Navarrus then goes on to define
"tributa" and "vectigalia" and to divide all taxes into real, personal,
and mixed. After showing that real taxes are more naturally due
than personal or mixed taxes, the work comes to an abrupt close.
Navarrus has always been classed as an exponent of the view that
tax laws are purely penal laws and a careful reading of his works
seems to justify that tradition. Nevertheless, it remains true that
he does not explicitly and definitely state it as his opinion that tax
laws are de facto purely penal.
3. Beia (dates unknown—lived in second half of 16th century).
i8 Ibid.
" Cf. De Legibus, V, c. XVIII, n. 2.
12 In Opera Alfonsi Castro (Paris, 1571), col. 1513 ff.
13 Navarrus, Commentarius de Lege Poenali, n. 41, in Opera Omnia, III,
p. 683.
14 Op. cit., n. 46, p. 684.
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32 The Moral Obligation of Paying Just Taxes
tempt, but that it is his intention to oblige those who transgress the
law without just cause, to this or that penalty. Beia claims the sup
port of St. Thomas for both these arguments.19 He concludes:
"... and therefore that law would also be just which tacitly con
tains the same thing, namely, which expresses the penalty and is
silent about the obligation in conscience to the sin." Beia gives three
additional arguments for this statement. (1) When the legislator
could oblige to both proposed obligations but expresses and affirms
only one, he seems to deny the other. When therefore the legis
lator could oblige to both the eternal and temporal punishment, but
invokes only the temporal, the presumption is that he excludes and
remits the eternal. (2) No law is binding in conscience except from
the will of the legislator who ought to express his will so clearly
that a normal subject cannot plead either ignorance or doubt.
(3) Pagan legislators do not determine anything about mortal sin,
and very few Christian secular princes, when asked about the mat
ter, would say that when they attach a temporal penalty to a law,
they intend to bind also to an eternal penalty not present by reason
of either divine or natural law.20
The point of this whole line of argument seems to be this: No
law binds in conscience except from the will of the legislator who
ought to express his will so clearly that there is no doubt about the
matter. From this it follows that a law-maker may certainly pass a
law in which he expressly states that it is his intention to bind in
conscience only to the penalty. When such an intention is not ex
pressed, but the law nevertheless contains a penalty, Beia thinks that
the law implicitly contains an intention of not binding under pain of
mortal sin to anything but the penalty. Since tax laws always con
tain a penalty, implicitly they contain the legislator's intention of
not wishing to bind under pain of mortal sin to anything but the
penalty.
It is to be noted that Beia argues only that laws in which a grave
obligation in conscience is not expressed, do not bind under pain of
mortal sin, because the legislator is not presumed to wish to send the
19 "... ut docet uterque Th. 2,2, q. 186, ar. 9," op. cit., p. 55.
20 Ibid.
Opinions Concerning Obligation Imposed by a Just Tax 35
subject to hell. But this does not prove that he did not hold that
laws with a penalty attached bind under pain of venial sin. Hence
it cannot be said with certainty that Beia is an exponent of the
purely penal law theory as that theory is taught today, because ac
cording to the modern theory of purely penal laws, there is not even
an obligation under pain of venial sin to perform the act prescribed
by a so-called purely penal law.
4. Berardi (d. 1916). Berardi defines a tax (tributum) as,
"anything which is paid to the government, province or municipal
ity." 21 He includes in this, not only all taxes, whether direct or
indirect, but also most of the income which is derived from fees and
even certain types of fines. He excludes postal fees and railroad
rates, which he says contain an implicit contract.
After giving this wide meaning to the word "tax," Berardi asks
the question: "What therefore about subjects who have found a way
to avoid paying a tax?" He answers as follows: "... probably
there is no obligation of restitution after the tax has been evaded.
For the duty of paying taxes probably does not arise from a tacit
pact by which the subjects bind themselves to pay the prince what
ever is necessary for the public expenses—each one contracting to
pay an allotted percentage of the debt; but this duty arises rather
from the law of the prince who determines how that sum of money
which is necessary shall be raised." So far, Berardi has not claimed
that tax laws are purely penal laws. He has merely said that tax
evasion probably does not involve the obligation of restitution.
Berardi is usually classed with those who hold that tax laws are
purely penal laws because of the following statement: "But it seems
that the prince does not wish to bring about this effect (i. e., raising
money) by means of conscience (ope conscientiae) but by means of
his officials and fines; as though he said: either pay or expose your
selves to the danger of a fine; for this is sufficient and it would be
superfluous to burden consciences." Berardi then appeals to the
"sensus communis," which he says has always understood tax laws
in this sense. His final argument is from the authority of theolo
gians: "Nor are there lacking theologians of great name who con-
'
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36 The Moral Obligation of Paying Just Taxes
sider this opinion probable. Cf. Navarrus (XII, 55), Lugo (XXXVI,
42), Gury (740-744), Frassinetti (Diss. VII, n. 1) and S. Lig. (n.
616)." 22
Berardi holds that there would not be an obligation of restitu
tion even though the tax were evaded by means of lies and deceit.
5. Genicot-Salsmans (G. 1856-1900). Genicot is quite orderly
in his treatment of the question.23 First, he states what is certain,
namely, that unjust tax laws do not oblige in conscience; that the
legislator has the power to pass tax laws which do oblige in con
science even before demand for payment is made; that nowadays
there is no obligation to pay taxes before the amount each one has
to pay is determined by the state. According to Genicot it is also
certain that per se there is no obligation in conscience to declare tax
able goods spontaneously. Although it is certain that the general
obligation of supporting the state must be particularized by law be
fore it urges, some authors hold that per se there is an obligation of
declaring taxable goods.24
Genicot then states his opinion concerning the obligation im
posed by tax laws. "It is more probable," he says, "that today tax
laws in most regions are purely penal." He gives three reasons for
this opinion: "(1) Even in former times there were not lacking
doctors who considered these laws at most merely penal (Lugo, disp.
36, n. 38). But today this can more easily be admitted since legis-
"
Opinions Concerning Obligation Imposed by a Just Tax 39
and other such revenues, which are due to those who preside over the
Church, and to the civil magistrates." 32 (4) The argument from
reason: "The state has to be maintained for the common good, peace
and security, and therefore it is part of legal justice that the citizens
should contribute their just share when it is claimed." 33
After thus establishing the first part of the thesis, Davis justifies
the exception he makes in these words: "In most states nowadays,
and prescinding from periods of urgent need and imminent danger,
it is questionable whether this obligation is more than penal. In
England it is certainly penal only, because the executive exercises
considerable vigilance, inflicts heavy fines and imposes heavy direct
taxes to recoup losses. It appears unreasonable to expect good citi
zens, who certainly are in the minority, to be obliged in conscience
to pay taxes, whereas so many others openly repudiate the moral
obligation, if there is one. It seems unjust that good people should
feel an obligation to be mulcted and to pay readily, in order to bal
ance the evasions of so many." 3*
Fraud, lying and deceit in the matter of income tax returns are
not to be countenanced, but, "such acts are not clearly sins against
justice and do not necessarily entail restitution." Davis concludes
this part of his work: "Nevertheless, whatever may be held in point
of theory as defensible, Catholics should err on the side of strictness,
for even the statement, and still more, the putting into practice, of
the complete doctrine on taxation, are apt to give scandal and do
harm to religion. It is chiefly post factum that the confessor may use
—but with the greatest prudence in speech—the common teaching
without scandal." If by this, H. Davis means that according to the
common opinion tax laws are merely penal, the statement is not cor
rect. It is true that most authors would not enjoin the obligation of
making restitution on a penitent who has evaded a tax, but this
leniency is based on the presumption that a certain percentage of tax
laws are unjust, not that tax laws are purely penal.35
Davis says nothing about the obligation of paying indirect taxes.
36 Infra, p. 60.
sr Theologia M oralis (Naples, 1939), II, n. 778. The article on taxes begins
in number 773.
88 Op. cit., n. 775.
39 P. 60.
42 The Moral Obligation of Paying Just Taxes
V
V
Opinions Concerning Obligation Imposed by a Just Tax 43
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44 The Moral Obligation of Paying Just Taxes
44 The statement that "taxes are not penalties" is found in several authors
who do not hold the view that tax laws are merely penal, and is adduced as an
argument against the penal law theory. As an argument against the penal law
theory the assertion is weak and indicates a misunderstanding of the opinion
that tax laws are purely penal. No exponent of this theory has ever claimed
that taxes are penalties, nor does the theory necessarily lead to this conclusion.
Cf. Suarez, De Legibus, V, c. XIII, 4.
46 Matt. 22, 21; Rom. 13, 7.
48 Supra, p. 16.
« De Legibus, V, c. XIII, n. 2.
Opinions Concerning Obligation Imposed by a Just Tax 45
purely penal by the fact that they have a penalty attached to them,
unless the contrary is evident from the words or circumstances of
the law." Suarez calls this opinion "common." 48 The first part
of the answer is simply a statement of the obvious truth that there
is nothing in the nature of a tax law to make it purely penal. To
call this part of the opinion, "common" is quite an understatement.
However, the proof of this statement is important because it contains
the clearest exposition of the teaching of Suarez concerning the spe
cific obligation imposed by a just tax law. Tax laws are not per se
penal laws because "the matter of such laws is a matter of commu
tative justice, and contains as it were a just stipend . . . which is
to be given to the rulers so that they may carry out the duties of
their office." This is evident to Suarez from the text of St. Paul:
"Render to all men whatever is their due," etc.
The arguments for the second part of the answer, namely that
the addition of a penalty does not make the law purely penal, are
presented very forcefully. Suarez argues that a tax law could be
enacted with no penalty attached. If such a law were passed, it
would certainly bind in conscience. The addition of a penalty to
this law would not of itself extinguish the obligation already carried
by the law—the law would now contain a twofold obligation, one
to pay the tax and the other to respect the penalty. The mere fact
that a tax law contains a penalty does not give the subject liberty
to choose either to pay the tax or to undergo the penalty if inflicted,
for if this were true, the addition of the penalty would lessen rather
than increase the efficacy of the law.
It is to be noted that Suarez argues from the hypothetical de
crease in the efficacy of the law, not from a possible lessening of the
obligation of the law. By definition, a purely penal law imposes less
obligation than other laws, hence it would not prove anything to
claim that tax laws could not be purely penal because they would in
that case contain less obligation. The point Suarez makes here is
that ordinarily the purpose of a penalty is to increase the efficacy
of the law, in other words, to insure the observance of the law.
Therefore the normal interpretation of penal laws cannot be such
** ibid., a. 3 ff.
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46 The Moral Obligation of Paying Just Taxes
that it nullifies the ordinary purpose for which penalties are added
to laws.
Suarez does admit the possibility of purely penal tax laws, but
before he will grant that any tax law is purely penal, the fact must
be "evident either from the words or circumstances of the law."
And regarding tax laws, he does not admit that this fact is evident.
"I judge," he says, "that these laws which impose taxes under pen
alty are mixed laws and hence per se oblige in conscience to the pay
ment of the tax." In establishing this opinion, Suarez repeats the
argument in the preceding paragraph and adds the following: "Since
this is a matter of justice and so pertinent to the common good, the
object (materia) of such laws very strongly demands an obligation
of this type. It is indeed morally necessary for the conservation and
governing of the republic." 49
In a subsequent chapter, Suarez discusses the second question.
He has already presented the proofs for his opinion that per se tax
laws do oblige in conscience to the payment of the tax, now he asks :
"Do tax laws oblige in conscience to the payment even though pay
ment is not demanded?" 50
Suarez first remarks that it is certainly possible for a legislator
to enact a tax law in such a way that it would, not oblige before
payment is demanded, and it is just as possible for the legislator to
enact a tax law that would oblige before payment is demanded.
There is nothing in the nature of a tax law to prevent either mode of
enactment. The second mode would not be unjust nor impose too
great a burden on the subjects, since "a tax is imposed as a just debt
and is due in justice; but to order the payment of a debt without
reference to a particular demand is not unjust nor does it impose
too great a burden."
Since there are at least two possible ways of considering the
obligation it is to be expected that authors will be found for each
side. Indeed, since some authors make a distinction between the
obligation imposed by old tax laws and that imposed by new laws,
Suarez gives three opinions. Only the opinion held by Suarez him-
*9 Ibid., n. 5.
<i0 Op. cit., XVIII.
Opinions Concerning Obligation Imposed by a Just Tax 47
self will be considered here. Suarez says: "The third opinion with
out distinction affirms that tax laws oblige to the payment of the
tax even though it is not demanded." 51 This opinion is based on
the following reasons: (1) A just law obliges in conscience without
any admonition. (2) A just tax is due in justice; but everyone is
obliged to pay his just debts, even though payment is not demanded.
It is in connection with this second reason that Suarez enlarges on
what he has said about the obligation to pay taxes being founded in
commutative justice. "Perhaps someone will say that taxes are not
due from justice but at most from obedience to the law. But this is
plainly false and against all the doctors who confess that when there
is an obligation of paying taxes, it is an obligation of justice." In
proof of this statement, Suarez appeals to the text from St. Paul
quoted above, and also to the words of our Lord: "Render therefore
to Caesar the things that are Caesar's." 52 According to Suarez this
statement of our Lord means that taxes must be paid for the same
reason that things belonging to someone else must be returned to
him. "Furthermore," he continues, "a human law does not oblige
immediately from the virtue of obedience itself, but places the act in
its proper species of virtue according to the nature of the matter
and the motive or reason for prescribing the thing; in this case the
matter of the law imposing a tax is a matter of justice, and the
motive for prescribing it is that equity of subjects and rulers be
preserved."
Of the thirty or so pages given to the subject of taxes, Suarez
devotes less than a single page to the specific virtue involved in the
paying of taxes. Yet there is no doubt that he is to be classed
among those who hold that all taxes oblige in virtue of commutative
justice.
4. Bonacina (d. 1631). Although Bonacina makes a distinction
between the obligation of paying taxes on the necessities of life and
the obligation of paying other taxes, he is rightly classed with those
who hold that all taxes are due in commutative justice. The reason
for this classification will be seen below.
61 Ibid., n. 4.
52 Matt. 22, 21.
rH
48 The Moral Obligation of Paying Just Taxes
^
Opinions Concerning Obligation Imposed by a Just Tax 49
ion tax laws are: (1) purely penal; 59 (2) obligatory in virtue of
legal justice; 60 (3) obligatory in virtue of commutative justice.61
This confusion can be traced to Lugo's treatment of the question,
which is indeed open to misunderstanding.
Lugo's first concern is with the question: Do tax laws oblige in
conscience before payment is demanded? The last phrase of the
question is important because one who answers this question in the
negative may or may not hold that there is an obligation in con
science after demand has been made.62 Lugo himself does not seem
to appreciate this point, for even granting that he is relying on
Sanchez and Diana for the information, he cites Angelus, Navarrus
and Beia in favor of the opinion that there is no obligation in con
science of paying taxes before demand for payment has been made.
But as was seen, these three authors maintain that there is no obli
gation to pay taxes even after demand has been made.63 To add to
the confusion, Lugo says of the negative opinion: "The argument
used by many is that tax laws are at most penal, which do not oblige
to sin but only to the penalty." If this argument is valid it supports
the opinion that there is no obligation in conscience to pay taxes
either before or after demand for payment has been made. But it
is evident from what Lugo says later that the sole question under
consideration in this place is the obligation before demand for pay
ment has been made.
Lugo states the affirmative opinion thus: "The contrary opinion,
which is commonly held, is that there is an obligation to pay taxes
before demand. . . . This opinion is proved first from Scripture
which supposes a debt in conscience, Rom. 13. For this is also why
59 Cf. Berardi, Praxis, II, p. 176; Genicot, Inst. Theol. Mor., I, n. 574.
60 Cf. Sabetti-Barrett, Compendium Theologiae Moralis (New York, 1939),
n. 174. The same may be said of most of the continuators of Gury.
61 Cf. St. Alphonsus, Theol. Mor., III, 616.
62 De Iustitia et lure, disp. XXXVI, sect. IV, n. 38 (Lyons, 1670), II, p. 506.
63 Angelus, Beia and Navarrus hold the opinion that tax laws are purely
penal, i.e., that they impose an obligation only to submit to a justly inflicted
penalty. A fortiori they would hold that there is no obligation of paying a tax
before demand is made, hence Lugo's citation is not incorrect but it is in
accurate. In this respect, Lugo could have profited by the example of Beia
who handles a similar situation very accurately. Cf. pp. 28, 30, 31.
\
Opinions Concerning Obligation Imposed by a Just Tax 51
you pay tribute, for they are the ministers of God, serving unto this
very end. Render to all men whatever is their due; tribute to whom
tribute is due; taxes to whom taxes are due. . . . The reason is clear,
because taxes are not due as a penalty but as a stipend due to the
prince from natural law . . . however, the amount of the stipend
must be determined by positive law unless it has been determined
by a pact." "4
Up to this point, Lugo has merely presented the status questionis.
He prefaces his own consideration of the question with two state
ments which he considers certain: (1) An unjust tax does not oblige
even when payment is demanded. (2) A just tax obliges in con
science in the way determined by the legislator. If the law orders
payment to be made before demand for payment is made, there would
be an obligation in conscience of complying with the law in this
matter. "Therefore," continues Lugo, "the whole difficulty is whether
de facto tax laws are such that they require the subjects to pay taxes
spontaneously and without any other petition for payment, and
whether a law thus enacted would de facto be so just that it would
oblige the subjects in conscience, and would impose the further
obligation of making restitution in cases of disobedience." 6B
Lugo favors the opinion that tax laws do not bind unless demand
for payment has been made. He does not say explicitly that he
holds this opinion or even that it is probable, but he does argue very
strongly against Vasquez that it is possible to have a law enacted
in this way. Vasquez maintained that just as no custom could be
introduced which would render the revenue of the church insufficient,
so too in civil law there could be no custom which would deprive the
king of sufficient income for his own needs and for carrying on the
work of governing.66 Furthermore, argues Vasquez, a custom must
be known and in some way approved by the king before it can have
the force of law. But when taxes are secretly evaded the prince is
not aware of the evasion nor can his consent be presumed because
when the evasion is discovered he demands payment and inflicts
penalties on those who have not paid or who have hidden things
that should have been taxed. Lugo answers that these arguments
do not prove the impossibility of the opinion. In the first place, the
revenue derived from tax laws which do not oblige unless payment
is demanded, may be sufficient. In fact, more and heavier taxes are
imposed because it is foreseen that some will not pay unless pay
ment is demanded. Thus in practice sufficient revenue is assured.
In the second place, the consent of the prince does not seem to be
necessary, "because," says Lugo, "a secular law which is not ac
cepted by the people does not oblige, as I hold (ut suppono)." And
regarding tax laws, Lugo continues, "The custom of all conscien
tious men who do not spontaneously go to the tax collectors and
offer to pay taxes shows clearly enough that the law is not otherwise
accepted by the people." But even granting that the custom of
not paying taxes unless demand for payment is made, must be known
and approved by the prince, Lugo maintains that this knowledge
and consent are present. The fact that the taxes are increased to
make up for loss through non-payment, proves that the prince knows
some will not pay. As for the consent, Lugo says: "I once heard
the most prudent King of Spain, Philip II, answer his ministers who
were complaining that many defrauded taxes, Leave them alone, for
they are only stealing from themselves; which response indicates
sufficiently that the subjects are but using their right when they do
not pay taxes unless payment is demanded." 8T This is one of the
few instances where an author gives direct evidence of the legislator's
intention concerning the binding force of tax laws. It is to be noted
that the evidence is used by Lugo, not to prove that tax laws are
purely penal, but to prove that there is no obligation of paying taxes
until payment is demanded.
After answering the objections of Vasquez, Lugo presents the
following argument which definitely establishes Lugo's position on
this question. "If taxes were paid in their entirety by all the sub
jects even before demand, without doubt the amount collected would
exceed that which is due to the king from the subjects, since de
facto that amount suffices which is collected only after demand for
,
Opinions Concerning Obligation Imposed by a Just Tax 53
payment has been made. ... A law therefore which would oblige
the payment of taxes before demand would not be just as far as
that circumstance is concerned, because it would oblige payment of
an amount greater than the king's necessities. Hence, in order that
the law be just and binding it must oblige only to that amount
which can be collected from taxes paid after demand for payment
has been made."
The only objection that Lugo can see to this argument is that
those who do not pay taxes (because they were not asked in par
ticular) fail to satisfy their natural obligation of contributing to the
necessities of the king. Lugo answers: "It is per accidens that a
person is exempted in a particular case: but taxes should be imposed
in such a way that at least per se all contribute equally, not in such
a way that per accidens some cannot be exempted." 6S He then
points out that many are exempted from paying taxes because of
their nobility or for some other reason and yet this fact does not
render the tax laws unjust.
Lugo closes the discussion of this question, i. e., the obligation
before demand, with the counsel of Molina: "Ante factum the peo
ple are to be advised to pay taxes; but post factum, i.e., after the
tax has been evaded, the confessor should not oblige a penitent to
make restitution if the penitent certainly or probably has persuaded
himself that in the multitude of taxes which he has paid there were
some unjust taxes, or that the number of taxes itself is too great and
excessive, or that, having regard for his state in life and his business,
the penitent judges that he has sufficiently contributed to the public
necessities." co Lugo cautions that this advice should be used "pru
dently and with the greatest skill."
The above review of Lugo's work leads to the following conclu
sions: (1) Up to this point, Lugo has been considering the binding
force of tax laws before a particular demand for payment has been
made. (2) Lugo holds the opinion that there is no obligation in
conscience of paying taxes before demand has been made.
It would be taking too much for granted to claim that Lugo
considers tax laws purely penal before demand. He does not dis
cuss the point and the main reason he gives for holding that there
is no obligation before demand seems to exclude the penal law theory
altogether. The penalty in a purely penal law is a means of coer
cion. It is attached to the law in order to assure observance of the
law, even though the legislator does not intend to bind transgressors
under pain of sin. Lugo maintains that a tax law would be unjust
if it obliged to payment before demand because the amount thus
collected would be more than the state could justly demand. Hence
a legislator would act unjustly were he to penalize those who failed
to pay because they were not asked for payment. As Lugo says:
"A law, which de facto forces (and it might be added—even by
means of a penalty) the payment of taxes before demand would not
be just as far as that circumstance is concerned." 70
Lugo devotes but a single paragraph to the discussion of the
obligation imposed by a tax law after demand for payment has been
made. The paragraph is not very clear due to the fact that the
first sentence begins: "It is inferred, first," etc., which gives the
impression that what follows immediately is the opinion of Lugo.
But the last sentence of the preceding paragraph evidently belongs
to this one, so that the paragraph would begin: "From this teach
ing and according to the mind of these doctors, it is inferred," etc.
The first inference is, "that the same thing is to be said under the
same circumstance (reference is to the advice of Molina) whether
the tax was not paid because payment was not demanded ... or
whether it was not paid because the subject hid himself or the
merchandise, or lied, in which case although he sinned against truth,
he did not sin against justice and therefore does not incur the obliga
tion of making restitution. Molina expressly holds this in the num
ber cited, together with others cited by Sanchez, who maintains this
even though perjury was used: however I think this is to be inter-
preted as meaning only when the subject believes that the tax or tax
collections exceed the necessities for which they are given to such
an extent that they would not have to be paid even after demand:
for otherwise it seems that once payment is demanded, it could not
be evaded." "
Lugo's own opinion regarding the binding force of tax laws is
contained in the last part of this passage. To him it seems that the
subject must pay a tax after demand for payment has been made
unless "the subject believes that the tax or tax collections exceed
the necessities," for which the tax was imposed.
7. Lacroix (1652-1714). Lacroix's teaching on the subject of
the obligation imposed by just taxes is very similar to that of Lay-
mann but he is a bit more original than Sporer who also followed
Laymann. 72 Lacroix teaches that it is "more probable that taxes
oblige in conscience and indeed from justice." 73 He does not say
what kind of justice is involved, nor does he speak of an obligation
of making restitution but his argument from reason indicates that
he means commutative justice. "A tax is not due as a penalty but
since the magistrates and princes serve the Republic they have a
strict right to demand those things which are necessary. Therefore
those who defraud this right commit an injustice."
8. Concina (1687-1756). Concina is a probabiliorist who is quite
strict in this matter. He says: "The sensus communis of theologians
condemns this opinion (the purely penal law theory) as lax, false
and repugnant to the word of God." 74 He, too, compares the state
to a servant and concludes: "Therefore the stipend, just as a serv
ant's wage, is due in strict justice."
9. Billuart (1685-1757). Billuart is remarkable not only for his
clearness but also for the fact that he is one of the first theologians
to mention "legal justice" in connection with the obligation of pay
ing taxes. He says: "To defraud just taxes, whether payment is
demanded or not, is ex genere suo a mortal sin against justice, not
merely legal justice but also against commutative justice and hence
'
'
56 The Moral Obligation of Paying Just Taxes
for carrying on the business of the state, hence the law obliges in
justice. /
10. Patuzzi (1700-1769). Patuzzi was a contemporary and
fellow countryman of St. Alphonsus. As an ardent probabiliorist,
Patuzzi was rather violently opposed to St. Alphonsus' equi-proba-
bilism, but the two theologians agree substantially in their teaching
on the obligation imposed by tax laws.76 According to Patuzzi, the
relations between the citizen and the state are comparable to the
relations between employer and employee.77 The state, i. e., the
government, is hired by the citizens. It has certain obligations
which require the expenditure not only of time but also of money.
In return the state has a strict right to compensation from the em
ployer, i. e., from the citizens. Patuzzi looked upon the tax laws
of his day in a more kindly light than did most of his contempo
raries. He says: "Generally speaking taxes are to be paid by the
subjects, and the providence and justice of the prince imposing
taxes are to be presumed." He does not endorse the leniency coun
seled by Molina, Lugo and St. Alphonsus. Concerning the purely
penal law theory, Patuzzi says: "The opinion of some who persuade
themselves that they do not burden their consciences by not paying
taxes . '. . must be considered false and erroneous." Navarrus is
singled out for special condemnation: '"The opinion, which it seems
was first taught by Navarrus, namely, that no penal law, either
ecclesiastical or civil, obliges in conscience, must be considered en
tirely false."
11. Voit (1707-1780). Voit maintains that it is "by far more
probable" that taxes must be paid under pain of grave sin, even
though payment is not demanded. Those who fail to pay taxes must
make restitution.78 Voit adds no new arguments but mentions that
the theory of those who hold that tax laws are purely penal seems
to lack solid foundation.
12. St. Alphonsus (1696-1787). St. Alphonsus proposes the
question: "Do those sin who defraud taxes (gabellas) and are they
70 Cf. Austin Berthe, Life of St. Alphonsus (Dublin, 1905), II, 142.
77 Elhica Christiana sive Theologia Moralis (Venice, 1770), I, p. 90.
78 E. Voit, Theologia Moralis, I, 855 (Augustae Taurinorum, 1833), p. 372.
58 The Moral Obligation of Paying Just Taxes
^
Opinions Concerning Obligation Imposed by a Just Tax 59
83 Cf. op. cit., III, 547: Restitutio igitur est actus justitiae; sed addendum
est: commutativae. Non enim debetur restitutio ex laesione justitiae legalis,
quae respicit jura legum et poenas; neque ex laesione justitiae distributivae,
quae respicit merita personarum.
84 Op. cit., 616.
85 S. E. le Card. Gousset, Thiologie Morale (Paris, 1869), I, p. 504.
88 Part III, chap. VIII, q. X: "Amongst those guilty of this crime of rapine
are included persons who do not pay . . . customs, taxes, tithes, and other such
revenues." Translated by J. Donovan (Dublin, 1908), p. 383.
60 The Moral Obligation of Paying Just Taxes
-
Opinions Concerning Obligation Imposed by a Just Tax 61
argued that Gury would hold the opinion that direct taxes oblige in
conscience. This conclusion is further strengthened by the fact
that in the second part of the response to the above question, Gury
says: "They are to be condemned . . . who do not pay taxes (tributa)
which have been in existence for a long time, and which are paid
by all without opposition." The point of this response seems to
be that a certainly just tax certainly binds in conscience, for the
presumption is that a tax which has existed over a long period of
years and which has been paid without protest, is a just tax. It
must be admitted that Gury does not explicitly adhere to the opin
ion that all tax laws oblige in virtue of commutative justice. How
ever, the inferences drawn above seem to be logical enough to war
rant the claim that actually he did hold this opinion. It would
certainly be misleading to quote him unconditionally in favor of
the theory that taxes oblige in virtue of legal justice.
The impression that Gury did favor the legal justice theory is
given by some of the later editions of Gury's work published by
"continuators." These editions and continuations of Gury's Com
pendium form an interesting study in textual manipulation. Gury
died in 1866. Probably the last edition of his book which contains
his original teaching on the obligation imposed by tax laws, was pub
lished in Rome by Melandri in 1872.89 In 1868 the fourth German
edition was published by an anonymous editor at Ratisbon. In
number 737 (which was 708 in the earlier editions) we read: "Leges
quae versantur circa tributa, generatim spectatae non sunt mere
poenales sed obligant in conscientia." This is exactly the same as
the text found in the edition of 1850, which was the edition used in
this study. But the following question is asked in a footnote in the
edition of 1868: "Sed ex justitia commutativa, an ex justitia legali?"
The editor does not answer the question but simply states that
authors differ as to the obligation imposed by both direct and in
direct taxes.
89 The writer does not claim to have seen all the editions of Gury's work.
He collated fifteen editions and continuations which he was able to locate.
There are certainly others. Hence it may well be that the edition of 1872 is
not chronologically the last edition which represents Gury correctly, just as the
edition of 1869 may not be the first to show signs of alteration in the matter of
taxes.
62 The Moral Obligation of Paying Just Taxes
90 Ballerini first published Gury's work in 1866 and it is probable that the
changes noted appear in this earlier edition.
91 Gury-Ballerini-Sabetti, Compendium Theologiae Moralis (Ratisbon,
1898), I, 474.
Opinions Concerning Obligation Imposed by a Just Tax 63
chapter divisions and numbering are those of the 1872 edition. Thus
number 737, IV, reads: "Leges quae versantur circa tributa genera-
tim spectatae, per se non sunt mere poenales, sed possunt in con-
scientia obligare." Gury had said that tax laws generally do oblige
in conscience; Ferreres claims that tax laws may oblige in conscience.
Ferreres uses the same texts of Scripture to prove his assertion as
Gury and St. Alphonsus had used to prove their assertions. The
proof from reason used by Ferreres is interesting.
St. Alphonsus (III, 616):
Probatur 2° ratione, quia, sicut rex tenetur vacare saluti populi,
administrationi justitiae et aliis oneribus: sic contra, tenetur
populus ex justitia et de jure naturali, solvere principi vectigalia
ad eius sustentationem.
Gury (I, 708, IV):
Patet enim ex ratione: princeps enim ad onera Reipublicae fe-
renda tenetur; ergo a pari subditi tenentur in conscientia et ex
justitia ad sustentationem ipsi procurandum, atque media pro
bono communi promovendo necessaria subministranda (S. Lig.,
n. 615, 616).
Gury-Ferreres (I, 737, IV):
Patet enim ex ratione: Princeps enim ad onera reipublicae fe-
renda tenetur; ergo a pari (italics original) subditi tenentur ex
justitia legali (italics original) ad media pro bono communi
promovendo necessaria subministranda (S. Alph., n. 615, 616).
St. Alphonsus and Gury use the argument to prove an obligation in
commutative justice; Ferreres uses it to prove an obligation in
legal justice, and does not hesitate to cite St. Alphonsus for his opin
ion. The least Ferreres could have done was to omit the reference
to St. Alphonsus which is certainly out of place in an argument in
favor of the opinion that tax laws oblige only in virtue of legal
justice.92
92 Iorio, Theol. Mor., II, p. 470 ff, contains practically the same text as Fer
reres: "Patet etiam ex ratione; princeps enim ad onera reipublicae ferenda
tenetur: ergo a pari subditi tenentur ex justitia saltem legali ad media pro bono
communi promovendo necessaria subministranda.—S. Alt. 1. 3, nn. 615, 616.
64 The Moral Obligation of Paying Just Taxes
A
Opinions Concerning Obligation Imposed by a Just Tax 65
96 Marres, who published his work in 1879, uses the same argument but does
not develop it so well as Waffelaert. Cf. infra, p. 66.
i» Op. cit., n. 419.
08 Loc. cit.
66 The Moral Obligation of Paying Just Taxes
09 Loc. cit.
100 Loc. cit.
101 De Justitia, II, c. II, a. I, para. 4, n. 192 (Ruraemundae, 1879), p.
337 ff.
102 Matt. 22, 21.
103 There may be some doubt as to whether the Greek word xfjvoov
always had this special meaning, but it is certain that the Pharisees and Hero-
dians who asked the question meant just such a tax. Cf. Soto, De Iustitia et lure
(Venice, I5 73), III, q. VI, a. VII.
Opinions Concerning Obligation Imposed by a Just Tax 67
giving God whatever is His due. Since this latter obligation cer
tainly binds in conscience, so also does the obligation of paying
taxes. The argument from the Epistle to the Romans is weak, be
cause Marres seems to sense that the words of the Apostle prove
more than is contained in the proposition he wishes to prove.
Marres says that St. Paul makes the payment of taxes a profession
of subjection, which according to Marres, it would not be unless there
were an obligation in conscience of paying taxes. Marres also seems
to say that the Apostle likens the obligation of paying taxes to the
obligation of paying a strict debt.104
Marres prefaces his discussion of the kind of obligation imposed
by just tax laws with the remark that in this matter the laws them
selves must be examined in order to arrive at a correct conclusion.
Having made this investigation himself, Marres states: "There is an
obligation in strict justice of paying that tax, when after legal deter
mination (i. e., when the amount a person must here and now pay
has been determined) the state can demand payment by instituting
civil action." 105 Marres argues that if the state has a right to insti
tute proceedings in the civil courts to obtain payment of the tax, the
obligation of paying the tax can in no wise be called purely penal.
If the state had only the right to inflict a penalty, the penal law
theory might be defended, but according to the law (in Holland)
the state has not only the right to inflict a penalty, but it also has
the right to sue for payment in the civil, court. The basis of this
right is the tacit pact whereby citizens oblige themselves to support
the state and to supply whatever is necessary in order to carry on
the functions of the government. Marres is of the opinion that this
argument (i. e., from a tacit pact) is more convincing in modern
governments where the people elect deputies and as it were charge
them with undertaking the care of the state. "One who commands
another to undertake expenses in favor of himself, is bound in strict
104 Op. cit., n. 192. The statement is not too clear: "Propterea etiam
Apostolus specialem obligationem tributum praestandi, quam propria Graecorum
voce teXeW iam commendaverat, postca locutione ex obligatione debitum seu
aes alienum solvendi translata scite elucidat &jtooi8ovai ocpeilao.
105 Op. cit., n. 196.
68 The Moral Obligation of Paying Just Taxes
106 It is not clear whether Marres identifies these two virtues or not. He
refers to "obedientia seu justitia legalis."
107 Manuale Theologiae Moralis, I, n. 289 ff.
108 Cf. supra, p. 67.
v
Opinions Concerning Obligation Imposed by a Just Tax 69
the purely penal law theory which nevertheless Prummer does not
wish to exclude since he states of the proposition: "All theologians
from the time of S_ Justin Martyr in the second century up to the
present day, agree."
In number 293 Prummer takes up the problem of the kind of
obligation imposed by tax laws. In presenting the opinion that
taxes are due in commutative justice, he gives as the intrinsic argu
ment: "the implicit contract which is said to exist between prince
and people." He draws an indirect argument from the fact that
according to the common teaching, ecclesiastical taxes are due in
commutative justice. "Therefore," he says, "the same thing is to
be said of just civil taxes." He does not mention the argument from
Scripture in this place but after presenting the other opinions con
cerning the obligation imposed by tax laws, he says: "Theoretically
the first opinion (i. e., commutative justice) seems to be preferred,
both because of the weight of authority, especially of Sacred Scrip
ture (italics added) and on account of the intrinsic arguments."
It is to be noted that Prummer is not consistent in using Sacred
Scripture as an authority having special weight in proof of the com
mutative justice theory, when he has already said, in effect, that
Sacred Scripture proves only that tax laws may be purely penal
laws. If Sacred Scripture proves the commutative justice theory,
there is no room for discussion about the purely penal law theory.
18. Bouquillon (1840-1902). Bouquillon agrees substantially
with Waffelaert in his teaching regarding the obligation imposed by
just tax laws, namely, that tax laws oblige in virtue of commutative
justice. However, Bouquillon places some value on the authority
of previous theologians in proving his opinion, whereas, as was
noted,109 Waffelaert thought very little of the arguments advanced
by those who before his time held that tax laws imposed an obliga
tion in commutative justice.
Bouquillon first states that just tax laws certainly oblige the
subjects in some way.110 He proves this general thesis from Scrip
ture and the teaching of the Fathers. Of the Scripture argument,
he says: "We are taught by the Sacred Scripture that taxes (tribu-
tum, census et vectigal) are owed to the power established by God,
which it is wrong to resist." Bouquillon is one of the few theolo
gians who appeals to the teaching of the Fathers to establish an
obligation in conscience of paying taxes.111 He cites Tertullian, St.
Augustine, St. John Chrysostom and St. Irenaeus.112
In a second thesis Bouquillon states: "The members of the com
munity are directly and absolutely obliged to make the contribu
tions justly prescribed; this obligation is not disjunctive, i.e., either
pay the tax or pay the fine: in other words, per se tax laws are
moral, not merely penal." In proof of this thesis, Bouquillon states:
"A priori it seems entirely reasonable that in a matter of such im
portance the superior should prescribe absolutely whatever is just
and necessary; for if he left it to the option of the subjects either
to pay the tax or to run the risk of being fined, the end (finis) of
the law could not generally be attained, and furthermore, it (i. e.,
giving the subjects this option) would occasion innumerable frauds
and deceits, with great loss to the treasury and detriment to public
morals." His a posteriori argument is interesting because it directly
contradicts the assertions of Berardi, Crolly and others who place
so much emphasis on the "sensus communis" in proving their claim
that tax laws are purely penal. Bouquillon says: "From the most
common opinion of theologians and lawyers, it is evident (italics
added) that tax laws at whatever time, among whatever people, and
under whatever form of government, are moral, i. e., these laws oblige
immediately and directly to the payment of the tax itself; indeed,
tax laws are enacted in this sense by prudent legislators and are
understood in the same sense by the saner portion of the people."
Bouquillon's third thesis reads: "The subjects are obliged to pay
111 Patuzzi also appeals to the testimony of the Fathers. Cf. Etkica Chris
tiana, I, p. 90.
112 The opinion of the Fathers concerning the obligation of paying taxes is
usually found in their commentaries on Matt. 22, 21 and Romans 13, 7. For
example, St. Augustine says in his Exp. quarumdam quaest. in Epist. ad Rom.
72: "If therefore, a man thinks that because he is a Christian he does not have
the duty of rendering tribute or of paying taxes, . . . then he has fallen into a
great error." ML, XXXV, 2083 ; cf. also, St. John Chrysostom, Hom. XXIII,
2 (MG, LX, 616).
Opinions Concerning Obligation Imposed by a Just Tax 71
taxes not only from legal justice but also from commutative justice,
so that one who does not satisfy his obligation is bound to make
restitution." He argues that, "expenses made in favor of the com
munity by those who lawfully work for the community devolve on
the whole community and on each member thereof according to the
ability of each to pay." Since this argument is not based on the
particular form of government which may exist in a country, but
on the fact of expenses legitimately made by the government (by
any form of government) in favor of the community, the argument
is intended to cover any form of government that may de facto pre
scribe the paying of taxes. However, Bouquillon points out that
the force of the argument is more easily seen, "where the people have
a greater part in the administration of the republic."
According to Bouquillon, the obligation of declaring things sub
ject to taxation is not to be taken strictly but may be interpreted,
"according to the accepted custom." But per se there is such an obli
gation arising from the virtue of obedience.
20. Merkelbach (b. 1871). Since Merkelbach does not add
any new arguments to support the opinion that tax laws oblige in
virtue of commutative justice, it will not be necessary to present his
argumentation.
His first thesis is to the effect that de iure and per se, tax laws
oblige in conscience, at least after the portion each one is to pay has
been legitimately and justly determined.113 This thesis is merely
a statement of the evident truth that tax laws can oblige in con
science. Merkelbach's second thesis reads: "De facto at the present
time, taxes—at least in many countries—oblige in conscience." He
expressly cautions the reader that the thesis does not include Eng
land and English-speaking America.
In number 628, Merkelbach takes up the quality of the obliga
tion imposed by tax laws. He gives the three main opinions, namely,
that tax laws are purely penal, that they oblige in virtue of commu
tative justice, and finally that they oblige in virtue of legal justice.
Then he makes the following statement which shows that his ad
herence to the commutative justice theory is not too ardent: "In
114 Cf. J. Aertnys, Theol. Mor., III, 377, for the teaching of Aertnys on this
matter. This is another instance of a continuator (C. Damen) changing the
work of the original author (Aertnys).
115 Aertnys-Damen, Theologia Moralis (Rome, 1939), I, n. 831.
118 Cf. Priimmer, Man. Theol., I, n. 293. For the history of the theory
see below, p. 148 ff.
-/ V
Opinions Concerning Obligation Imposed by a Just Tax 73
ion in this matter was first brought to the attention of the public in
his numerous editions of Gury's Theologia Moralis.117 However,
the clearest presentation of his teaching is to be found in Bal-
lerini's own Opus Theologicum Morale first published posthumously
by Palmieri in 1889. The following analysis is taken from this lat
ter work.
Ballerini first states that per se tax laws are moral and not merely
penal, because "they prescribe an act of the virtue of legal justice." 118
The proof that the act of virtue prescribed is one of legal justice is
very meager. He says: "The prince and the subjects are bound, each
in their own way, to contribute whatever is necessary to carry the
burdens of the society." The other proofs given by Ballerini point
to an obligation in general but have little or no reference to an obli
gation in legal justice.
Ballerini also maintains that per se there is an obligation of pay
ing taxes even though no demand for payment has been made.
Nevertheless, he is of the opinion that de facto tax laws in modern
states do not bind before demand for payment has been made.
Regarding the obligation of paying indirect taxes, Ballerini says:
"We may affirm with at least true probability that laws imposing
customs and imposts, are purely penal, at least in our times." Bal
lerini gives three arguments for this opinion. The first argument is:
"There are not lacking authors who consider these tax laws at most
penal: Cf. Lugo, disp. c. n. 38." The second argument is a rather
lengthy quotation from St. Alphonsus in which the saint gives the
arguments for the view that tax laws are merely penal. Ballerini's
point in citing the great Doctor is that, "having presented this opin
ion (i. e., that tax laws are merely penal) the holy doctor does not
expressly condemn it, indeed he says that the reasons given are not
to be despised."
It is to be noted that although Ballerini is attempting to prove
117 The first edition published by Ballerini appeared in 1866, but since the
writer could not locate this edition, the edition of 1869 published at Rome, is
referred to here. It may well be that the notes which are added to the edition
of 1869 are also found in the edition of 1866.
118 A. Ballerini, Opus Theologicum Morale (ed. Palmieri, Prati, 1892), I,
p. 322 ff.
74 The Moral Obligation of Paying Just Taxes
that indirect taxes of his time are purely penal, he does not cite any
contemporaneous authority. The authors mentioned by Lugo as
holding the opinion that tax laws are merely penal, all wrote two
hundred years before Ballerini. And he does not mention that St.
Alphonsus says of the penal law theory: "Whether for these reasons
(which moreover, it seems are not to be despised) the opinion is
sufficiently probable, I leave to the judgment of those wiser than
myself." 119
The third argument used by Ballerini, is drawn from what he
calls the common practice of taxpayers. He says: "The practice of
acting in this matter as if the law were only penal is sufficiently
common among men. Usually no one thinks himself bound to pay
indirect taxes, unless to the extent that he cannot escape the vigilance
of those whose duty it is to exact payment."
2. Pruner ( 1825-1907). Pruner is very definite in his opposi
tion to the view that tax laws oblige in virtue of commutative jus
tice.120 Although he maintains that in general there is an obligation
of paying just taxes, he says of indirect taxes: "Considering the
authority of the best modern theologians, it cannot be denied that
the opinion is probable which maintains that present-day laws, at
least those which impose indirect taxes, have the character of penal
laws."
According to him, laws which impose direct taxes oblige in vir
tue of legal justice. As proof that the obligation is not one of com
mutative justice, Pruner makes a comparison between the state and
the family. The basis of the mutual obligations of the ruler and the
citizens to work for the common good of the state is similar to the
basis of the mutual obligations of the head and members of the fam
ily to promote the common good of the family. And just as in the
family these obligations do not arise by reason of any kind of con
tract between the children and the parents, so also in the state the
obligations do not depend on a mutual pact between citizens and
ruler. The father and members of the family are bound to work for
^
Opinions Concerning Obligation Imposed by a Just Tax 75
'
76 The Moral Obligation of Paying Just Taxes
the members of the class. In this case, if one of the members of the
class fails to pay his share, the others must contribute more in order
to meet the amount which the group was assessed by the state.
4. Lehmkuhl (1834-1917). According to Lehmkuhl, the obliga
tion of paying taxes is founded in legal justice.123 However, in cer
tain cases the failure to pay taxes is a sin against commutative jus
tice and hence entails the obligation of making restitution. Com
mutative justice is involved whenever the failure of a person to pay
just taxes is the reason why other taxpayers must pay more than
their share of the tax burden, or is the reason why the salary of a
certain person connected with the government is not paid.
Lehmkuhl does not explicitly adhere to the opinion that indirect
taxes are imposed by merely penal laws, but it is evident from his
treatment of the question that he at least favors this opinion. He
says: "According to the opinion of many, indirect taxes are imposed
by penal laws (per modum legis poenalis) and these authors come to
this conclusion, both because of the fines or exorbitant penalties, . . .
and because of the common interpretation and acceptation of men."
In the following paragraph (which is in fine print) he says: "Others,
however, who contradict (the opinion that indirect tax laws are
merely penal) readily admit: (1) indirect taxes demanded from the
poor on the necessities of life are to be considered objectively un
just; (2) indeed, taxes which are demanded on things destined for
one's own use do not generally oblige to the extent that one must
spontaneously declare those things."
5. Noldin (1838-1922). Noldin is not very positive in his teach
ing concerning the obligation imposed by just tax laws, except in so
far as he rules out commutative justice as the basic virtue urging
the payment of taxes. His own opinion is contained in the following
principle: "Just tax laws, if they are preceptive, oblige in legal jus
tice." 124 His only reason for this statement is: "Tax laws are to be
judged according to the same norm as other laws; but per se other
civil laws oblige in legal justice."
>
/
Opinions Concerning Obligation Imposed by a Just Tax 77
'
78 The Moral Obligation of Paying Just Taxes
be involved in the paying of taxes. He does say: "It seems that the
opinion of some who consider the obligation one of obedience, must
be rejected altogether." 128
Wouters is about the only author who makes a distinction con
cerning the obligation of declaring things subject to taxation. He
says: "The law of declaring things subject to taxation seems to be
mixed, if it concerns direct taxes. . . . Practically it can be con
sidered merely penal if it concerns indirect taxes." The basic reason
of the author for this distinction seems to be that in the case of di
rect taxes the legislator intends that the obligation to declare tax
able goods be of the same species as the obligation to pay the tax
itself, and the contrary custom of the subjects is not sufficient to
overcome the will of the legislator; but in the case of indirect taxes,
the fact that heavy fines are imposed on those who do not declare
taxable goods seems to indicate that the legislator intends to substi
tute this obligation to the penalty for the obligation in conscience to
comply with the law.
3. Tanquerey (d. 1932). Tanquerey considers the following
thesis, "more probable." "Per se tax laws oblige in legal justice after
the amount to be paid has been legitimately determined." 129 He
points out that the phrase per se is included in the thesis because he
holds that per accidens tax laws may be merely penal. Tanquerey
does not say much in support of his claim that tax laws oblige in
virtue of legal justice. He argues that since men are born to live in
society, they have an obligation to supply whatever is necessary to
preserve the good order of the society within, and to protect the so
ciety from enemies without. "But unless the citizens are bound in
conscience at least in legal justice (Piety and obedience) to pay
these expenses, the end intended would not easily be attained."
Further on he says that the non-payment of taxes does not violate
an implicit pact, "because there is a legitimate doubt about the exist
ence of this pact."
The obligation of declaring things subject to taxation is one of
obedience unless the custom of not declaring such things is known
to the ruler and tolerated by him. In this case the law of declaring
taxable goods may be considered merely penal.
4. K. Wagner. Klemens Wagner has produced what is prob
ably the best work in modern theological literature on the obli
gation imposed by just ,tax laws. Unfortunately, the writers of
popular hand-books of theology have taken little notice of his
careful analysis of the arguments advanced by the exponents of the
various schools of thought regarding the obligation of paying taxes.
Wagner's criticism of these arguments will be given more fully in the
following chapter. In this place, a brief statement of his own opin
ion concerning the obligation to pay taxes will be presented.
In the opinion of Wagner, just tax laws bind in virtue of legal
justice.130 Although Wagner does attempt a direct proof that the
obligation is founded in legal justice, he seems to rest his case more
on the lack of positive proof for any other theory.181 He argues as
follows: There are three theories proposed anent the obligation im
posed by just tax laws. These are, the penal law theory, the com
mutative justice theory, and the legal justice theory. After closely
scrutinizing the arguments for the various opinions, Wagner con
cludes that the penal law theory is untenable,132 and that the com
mutative justice theory lacks sufficient proof,133 therefore the third
theory is to be accepted unless some unanswerable difficulty can be
brought against it or unless a rival theory other than the two dis
posed of can be elaborated. According to Wagner there is no other
theory and no serious objection can be made against the legal justice
theory. Therefore, just tax laws oblige in virtue of legal justice.
Wagner's direct proof that taxes are due in legal justice amounts
to this: taxes have as their object the common good; but the precise
object of the virtue of legal justice is the common good. Therefore,
the obligation of paying taxes is founded on the virtue of legal jus-
"-
w
Opinions Concerning Obligation Imposed by a Just Tax 81
,
82 The Moral Obligation of Paying Just Taxes
did not pay taxes when payment was not demanded or when the tax
was evaded without using unjust means. It cannot be determined
whether Bucceroni would act in this way from conviction that the
penal law theory is the true theory, or merely from respect for the
authority of the "many and weighty authors" who hold the penal
law theory. It is to be noted that Bucceroni does not name the
"many and weighty authors."
In the next paragraph, Bucceroni says: "They are to be con
demned . . . who violently resist the officials who collect taxes; for
they sin 1° against obedience ... ; 2° against legal justice; for even
though a tax law be considered merely penal, it gives the government
a certain right (ius certum) to demand the fine, if the subjects are
apprehended in fraud, etc." This paragraph is taken almost word
for word from Gury, but Bucceroni's version has important changes.
First, where Gury says, "against justice," Bucceroni says, "against
legal justice"; second, where Gury says, "even though a tax law be
sometimes (italics added) considered merely penal," Bucceroni says,
"even though a tax law be considered merely penal." m It is diffi
cult to understand this passage even in Gury's original version for it
seems that if tax laws are purely penal the tax-collectors have no
right to force payment of the tax and hence resistance to tax-col
lectors would not of itself be sinful. If the tax laws be purely penal
the subject has the right to choose either to pay the tax or to undergo
the penalty, and in the event that a person does choose to undergo
the penalty, no one can legitimately force the person to pay the tax.
The person may not, of course, refuse to pay the penalty, i. e., the
fine. However, if the tax law were de facto purely penal, it seems
that the citizen could not be accused of sin (leaving out of considera
tion sins of lying, perjury, etc.) unless he actually refused to pay a
penalty that has been inflicted. Hence it seems that Bucceroni would
not consider tax laws as merely penal since he holds that it is a sin
of disobedience to resist the tax-collectors. The fact that he says, "re
sist violently," does not change the case for under the penal law
theory, violent resistance would be sinful only if it were out of due
proportion, i. e., if greater resistance were offered than called for by
the coercion of the tax-collector.
"» Cf. Gury, Comp. Theol. Mor., I, n. 709.
CHAPTER III
1 No author treats this particular point, but it seems that the ordinary
principle whereby an accused person—even a guilty one—may attempt flight
provided he does not thereby expose his own or another's life to danger, may
be applied here. Cf. Merkelbach, Sum. Theol. Mor., II, n. 641 B.
2 Some of the more valuable contributions are: Biederlack, "Zur Lehre von
den Ponalgesetzen," Zeitschr. f. Kath. Theol., 23 (1889), 155 ff ; the series of
articles by Koch in the Tiibinger Theologische Quartalschrift, 32 (1900), 204 ff;
34 (1902), 574 ff; 36 (1904), 400 ff; K. Wagner, Die sittlichen Grundsdtze
beziiglich der Steuerpflicht (Regensburg, 1906), 52 ff; Noldin, "Zur Erklarung
des Ponalgesetzes," Zeitschr. f. Kath. Theol., 33 (1909), 126 ff; Janssen, "Des
lois penales, Notion, possibility, existence," Nouvelle Revue Thiologique, 50
(1923), 119 ff; Montes, "Interpretacion de la Ley Penal," La Ciudad de Dios,
144 (1926), 436 ff; G. Renard, La valeur de la Loi (Paris, 1928), p. 183 ff;
also by Renard, La thiorie des "leges mere poenales" (Paris, 1929) ; Ulpian
Lopez, "Theoria Legis Mere Poenalis," Periodica de re Morali, Canonica, Litur-
gica, 27 (1938), 203 ff; 29 (1940), 23 ff; F. Litt, "Les lois dites purement
penales," Revue ecclisiastique de Liege, 30 (1938-39), 141-156 and 359-372; I.
83
84 The Moral Obligation of Paying Just Taxes
The theory did not originate in connection with civil or even in con
nection with ecclesiastical law of a general nature. The earliest
references to the notion that transgression of certain precepts is not
in itself sinful, are found in discussions concerning the binding force
of the rules and constitutions of religious orders.3
The morality of disobedience to religious rules and constitutions
was ,a subject of debate among the monks as far back as the first
half of the twelfth century. The earliest known work on the subject
is a short treatise, De Praecepto et Dispensatione, by St. Bernard.4
The saint had been asked by the monks of Chartres for a decision
on several questions, among them the binding force of the rules and
constitutions. There is no doubt in St. Bernard's mind that all the
rules and constitutions bind under pain of sin, either mortal or venial,
according to the matter involved.
With the advent of the rule of St. Dominic, the opposite doctrine
became certain. Indeed, the general chapter of the Dominican
Order held in 1236 included the following declaration in the prologue
to the rule: "Ut igitur unitati et paci totius Ordinis provideamus,
volumus et declaramus ut Regula nostra non obligent nos ad cul-
pam, sed ad poenam, nisi propter praeceptum vel contemptum." 5
As St. Thomas indicates later on, this practical settlement of the
question does not necessarily apply to the rules of all religious orders,
but there can be no doubt about the validity of the principle in
volved, namely, that not every violation of a religious rule is per se
sinful.
St. Thomas wrote his Sumtna Theologica some thirty years after
the Dominican rule incorporated the principle mentioned above, but
there is no evidence either in the Sumtna or in any other of his writ
ings to show that the great Doctor advanced the purely penal law
theory beyond the point reached by the chapter in 1236. In the
Secunda Secundae, q. 186, a. 9, St. Thomas treats the obligation of
a religious to observe his rule and says: "Not every transgression
of the things contained in the rule is a mortal sin." 6 In his reply to
the first objection of this article he says: "There is also a religious
order, that of the Friars Preachers, where suchlike transgressions or
omissions do not, by their very nature involve sin, either mortal or
venial; but they bind one to suffer the punishment afftxed thereto,
because it is in this way that they are bound to observe such things."
Had St. Thomas intended to extend the theory to civil law, the
logical place for him to inform us of the fact is question 96, article
4 of the Prima Secundae, where he proposes the question: "Whether
human laws bind a man in conscience?" But there is not the
slightest indication in the answer to this question that St. Thomas
had any idea of a civil law binding only to the penalty. The burden
of his answer is contained in the following sentence: "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." St. Thomas makes no distinction between laws that
bind in conscience only to the penalty and laws which bind in con
science to the performance or omission of the act prescribed; nor
does the phrase, "they have the power of binding in conscience,"
imply that although the power of binding is present, not all laws
actually do bind in conscience. The Latin is clearer on this point:
"Si quidem justae sunt, habent vim obligandi in foro conscientiae."
It is evident that "habent vim" is not the equivalent of "possunt
obligare."
The next step in the development of the purely penal law theory
seems to have been made by Henry de Gand (d. 1293). Up to his
time the theory had been applied only to the rules of religious orders,
but Henry with very little fanfare says: "Et simile est de statutis
principum et praelatorurn in consimili materia." r As far as we
»
6 Wherever the English version of the Summa is used in this study, the
translation is that of the English Dominican Fathers, 3rd edition (London,
1941).
7 Quodlibeta (Paris, 1518), III, q. 22.
/
86 The Moral Obligation of Paying Just Taxes
/
Analysis of the Various Views 87
c
88 The Moral Obligation of Paying Just Taxes
13 Castro has been chosen for the comparison because Angelus does not
define, indeed he does not use these terms. However, his ideas are expressed
accurately enough by Castro. As a matter of fact, it seems that Castro was the
first to use the term, "lex pure poenalis," and according to Navarrus was the
first to distinguish laws into "moral," "mixed," and "purely penal." Cf. Navar
rus, Commentarius de Lege Poenali, nn. 26, 27.
14 De Potestate Legis Poenalis, I, c. IX (Paris, 1571), col. 1613.
*N
i
Analysis of the Various Views 89
Moses) shall have stolen a cow or a sheep and shall have sold it or
killed it, let him restore five cows for one cow, etc." 1B As an ex
ample of a purely penal civil law, Castro gives the following from
the laws of Spain: "We prescribe that any person who violates or
who does not keep his oath concerning any contract, ipso facto
shall lose all his goods." 16 According to the modern notion of a
purely penal law, neither of these laws could be called purely penal;
in the modern sense, they are mixed laws, i. e., laws which oblige in
conscience to both the act prescribed and the penalty.
Failure to grasp this fundamental distinction between the mod
ern notion of a purely penal law and that of the majority of the the
ologians of the period immediately after Trent has been the cause
of much confusion and misunderstanding. For example, the dis
putes of this period about the binding force of mixed laws " are in
telligible only when it is realized that for most of the post-Tridentine
theologians, a mixed penal law was a law that prescribed or forbade
the doing of something and at the same time enjoined a penalty;
it was not defined, as it is today, as a law that does de facto bind in
conscience to both the act prescribed and to the penalty.18
Navarrus, as was pointed out,19 objected to the division of laws
into purely penal, mixed, and purely moral. In his opinion all laws
'
90 The Moral Obligation of Paying Just Taxes
were mixed laws, because all laws "tacitly contain a sin and a pen
alty." 20 He says: "... every law which he (Castro) calls purely
moral seems to oblige under pain of venial or mortal sin and conse
quently contains eternal or temporal punishment in either the life to
come or in this; and every law which he calls purely penal, seems to
oblige tacitly under venial or mortal sin, on account of which sin the
penalty is imposed." 21
It must be admitted that it is difficult to arrive at a consistent
interpretation of Navarrus' teaching concerning penal laws, for in
spite of the above passage, which seems to rule out the possibility of
a purely penal law in any sense, Navarrus clearly taught that all
laws containing a penalty obliged only to the penalty unless the
penalty were imposed for something contrary to divine law or unless
the legislator expressed his intention to bind both to the penalty and
to the act.22 The solution of this seeming contradiction is too large
a problem to be treated in the narrow confines of this sketch. It
will suffice to state that the opinion of Navarrus never became popu
lar.
The next phase in the development of the purely penal law
theory is due to the writings of Suarez (d. 1617). Like Castro,
Suarez defines a purely penal law according to what is expressed
in the law, i. e., according to what is expressly commanded by the
law, not according to the extent or nature of the obligation imposed
by the law. He says: "A purely penal law is one which contains
only one, and that a hypothetical precept of accepting a certain pen
alty if this or that occurs." 23 The difference between this defini
tion and that of Castro appears to be slight, for even though Suarez
is, as usual, more analytic, and calls the precept contained in a purely
penal law, a "hypothetical precept," nevertheless he does insist that
a purely penal law expresses only one precept.24 In this he agrees
1
Analysis of the Various Views 91
with Castro. But the similarity stops there. For Suarez, unlike
Castro, makes "precept" and "obligation" correlative terms. In
other words, according to Suarez, a precept always gives rise to an
obligation, and conversely, an obligation is always the result of a
precept.25
The revolutionary effect of this teaching is not immediately evi
dent in Suarez' concept of a purely penal law. He defines it in a
way that agrees substantially with Castro and comes to the same con
clusion as Castro regarding its binding force.26 Nevertheless, the
new doctrine paved the way for the modern definition of a purely
penal law. For if "precept" and "obligation" are interchangeable
terms, it makes no difference which term is used in the definition of
a purely penal law. A law expressing only one precept would be the
same as a law expressing only one obligation. Suarez himself used
"precept" in his definition of a purely penal law but those who fol
lowed him, with few exceptions, used "obligation." Thus, today a
purely penal law is commonly defined as one that contains only one
hypothetical obligation of submitting to a penalty.
The immediate and more striking effect of making "precept" and
"obligation" correlative terms is seen in the definition of a mixed
law given by Suarez. Castro defined a mixed law as one that con
poenalem illam esse, quae vere praecipit aliquid faciendum vel omittendum, non
autem vult obligare sub culpa morali ad ilium actum ponendum vel omittendum,
sed tantum ad poenam subeundam in casu quo propter legis violationem est
irrogata. . . ." Normae Generales, I, p. 260, note 2. Neither Suarez, as is evi
dent from the text above, nor Billuart, as will be seen below, held that a purely
penal law contained two precepts. Cf. p. 93, note 33.
25 In arguing against the view of Navarrus that all laws containing a
penalty were purely penal (in the sense of obliging only to the penalty) unless
the legislator expressed the contrary intention, Suarez says that the only good
argument against Navarrus is that, "lex continens praeceptum obligat in cons-
cientia." In other words, if the law expressly prescribes or forbids something,
the law must be obeyed under pain of sin. Cf. Suarez, De Legibus, V, c. III,
n. 6.
26 Castro held that a purely penal law, i. e., one which simply prescribed a
penalty, bound in conscience only to the penalty unless the penalty were en
joined for something forbidden by divine positive law or by natural law. Cf.
Castro, De Potestate Legis Poenalis, XII; Suarez, De Legibus, V, c. IV, nn.
2, 3, 4.
I
92 The Moral Obligation of Paying Just Taxes
-■
Analysis of the Various Views 93
the law.32 He defines a purely penal law in almost the very words
of Castro. "A purely penal law," he says, "is one that imposes a
penalty on those who do or omit something, but without explicitly,
at least, prescribing or forbidding anything." After defining a mixed
law as "one that prescribes or prohibits an act and at the same time
imposes a penalty on transgressors," Billuart distinguishes two kinds
of mixed laws. The first kind is "copulative, as though the law read
—let no one export grain from the province and let him who does
export it, pay a fine; which may be expressed in a single proposi
tion thus: We forbid anyone to export grain from the province
under penalty of paying a fine." The second class is disjunctive,
as though it read, "Let no one export grain from the province, or if
he does export it let him pay a fine." After giving these definitions,
Billuart says: "I hold as certain that a mixed copulative law obliges
under pain of sin to place or omit the act; because it truly prescribes
or forbids." He claims that it is also certain "that a mixed disjunc
tive law does not oblige definitely to the placing or omitting of an
act, nor definitely to the penalty, but to one or the other." 33 Billuart
is mainly concerned with the binding force of his "purely penal law."
He asks: "Whether it (the purely penal law as he defined it) obliges
under pain of sin to place or omit the act, or only to submit to the
penalty?" He claims that more probably such a law binds to both
the act and the penalty. The reason he gives for his opinion is in
teresting. He says: "The reason is, because according to the com
mon understanding and the common way of speaking, if a person
says: whoever does this will be condemned to death, it is the same
thing as though he said—I forbid this to be done, and whoever does
it will be condemned to death; hence even though he does not ex
plicitly prohibit or prescribe, he does this implicitly." 34 It is evi
'
94 The Moral Obligation of Paying Just Taxes
modern concept of a purely penal law. Today, it might be asked whether any
purely penal law exists but not whether—in the supposition that such laws do
exist—they bind to both the penalty and the act. By definition nowadays, a
purely penal law binds only to the penalty.
35 The explanation of how the obligation of a purely penal law in the mod
ern sense binds, is given very well by U. Lopez, "Theoria Legis Mere Poenalis,"
Periodica, 27 (1938), p. 206: "Generatim, auctores duas proponunt explicati-
ones. Alii dicunt: obligamur ad poenam, i. e., 'ad acceptandam poenam ut
iustam.' Ferreres, Theol. Mor., I, n. 205; Marc-Raus, I, n. 181; Merkelbach,
I, n. 287 ; alii proponunt obligationem disiunctivam, i. e., vel ad implendum
quod praecipitur, vel ad sustincndam poenam, quae secus imponetur. Sic
Ferreres, o.c., qui hanc sententiam vocat communissimam." Cf. also, Priimmer,
Man. Theol. Mor., I, n. 209; Michiels, Normae Generales, I, p. 260, note 2.
38 Cf. Angelus, Summa Angelica, tit. Pedagium, n. 6.
Analysis of the Various Views 95
r
96 The Moral Obligation of Paying Just Taxes
'
98 The Moral Obligation of Paying Just Taxes
\
Analysis of the Various Views 99
course, the civil authority cannot make a law to cover each set of
circumstances so it usually makes a general law that no car shall
be driven at a greater speed than is consistent with the safety of
passengers and pedestrians, and several other particular laws setting
the maximum speed in different places based on the circumstances
that usually prevail in those places. But it is to be noted that what
ever laws are made, must be made for the common good.
The ordination of a thing to the common good which is brought
about by a law, cannot be merely negative, i. e., neither helpful nor
harmful to the common good. It must in some way contribute posi
tively to the common good. St. Thomas is very clear on this point.
In considering the essence of law, he asks: "Whether the law always
(italics added) is directed to the common good?"52 His answer
is so pertinent and clear that it will be given at length:
r
100 The Moral Obligation of Paying Just Taxes
« MI, q. 90, a. 1.
,
Analysis of the Various Views 101
" What is said here does not refer to religious rules and constitutions.
The root of the obligation to observe religious rules and constitutions (as
such) is the free will of the religious who voluntarily assumes these obliga
tions. The root of the obligation to observe civil law is man's social nature:
the root of the obligation to observe ecclesiastical law of a general nature is
man's supernatural destiny.
06 I-II, q. 18, a. 9.
&« Cf. supra, p. 97 ff.
I
102 The Moral Obligation of Paying Just Taxes
who breaks the law does not sin, provided the law-maker does not
intend to bind the subjects under pain of sin. This conclusion is
based on a misconception of the relation of law to the common
good.
The exponents of the purely penal law theory do not advert to
the fact that law is related to the common good only mediately
through human acts, since it is only through human acts that the
law can effect the common good. It follows that the common good
can never be perfectly attained unless the deliberate acts of all in
dividuals conform to the direction contained in the law. Further
more, since every individual is ordinated to the common good by
the very fact that God gave him a social nature, it follows that
no man can be perfectly good unless his human acts are in some way
directed toward the common good. As St. Thomas says: "The
goodness of any part is considered in comparison with the whole, . . .
since then every man is a part of the state, it is impossible that a
man be good unless he be well proportionate to the common good." 5T
As was pointed out,58 the law is the rule or measure whereby man
can judge whether or not his actions are proportionate to the com
mon good. If the acts of an individual do not conform to this rule
or measure, those acts are not good, and to that extent, neither is
the individual good. And this is true even though the majority of
the individuals subject to the law comply with the law and thus
bring about the common good substantially. The immediate ex
trinsic norm of morality in human acts is not the attainment of the
common good, but the law which by its nature is ordained to procure
the common good.
A word is necessary about an axiom often used by those who
hold the purely penal law theory, namely, he who can do that which
is greater, can do that which is less. Applying this axiom to the
power of a legislator to bind his subjects in conscience, they say
that it is a greater thing to bind to subjects to both act and penalty
than it is to bind to the penalty alone. Since the legislator can
certainly bind the subjects to both act and penalty, he can bind to
the penalty alone.
« MI, q. 92, a. 3, ad 3.
58 Cf. supra, p. 100 ff.
i
Analysis of the Various Views 103
The fallacy here lies in the application of the axiom that he who
can do that which is greater can do that which is less. The axiom
is valid only in cases where the effect is divisible. For example, a
pane of glass two feet square is greater than a pane of glass one foot
square. And since a pane of glass two feet square can be divided
into smaller squares, he who can make the larger piece, can make
the smaller piece. It is also true that the area of both sides of a
pane of glass is greater than the area of only one side, but it is
rather evident that he who can make the pane of glass with both
sides, cannot make it with only one side. A pane of glass is not
divisible in that way. So, too, is it impossible to separate moral
obligation from the prescription of the law. The legislator has
the power to determine whether or not a certain thing should be
commanded or forbidden by law. He also has the power to add
sanctions to the prescription or prohibition. And since the law
does not presuppose the sanction, the law can exist without the
sanction. Hence the legislator can enact the greater (the law plus
the sanction) or he can enact the lesser (the law without the
sanction).59 But once the legislator does enact a law, he has no
power to determine the extent of its binding force. For law by its
very nature is a rule or measure of human acts. Therefore the law
that is enacted immediately becomes a rule or measure whereby the
goodness or malice of human acts is judged. Those acts which
agree with the measure are good; those acts which disagree with it
are bad.
3. Criticism of the theory that all tax laws are purely penal laws.
Praenotanda. If the purely penal law theory in general is un
tenable, it is not strictly necessary to discuss the merits of arguments
advanced by authors to prove that tax laws in particular are purely
penal laws. However, since the vast majority of theologians con
sider the purely penal law theory at least probable, the arguments
will be investigated in order to show that even granting the proba
bility of the penal law theory in general, there is no good proof
that tax laws are de facto purely penal laws.
r
i
104 The Moral Obligation of Paying Just Taxes
Thesis: The Theory That All Tax Laws Are Purely Penal
Laws Has Little Probability Either from Intrinsic
or from Extrinsic Arguments
Proof: A. Analysis of the Intrinsic Arguments
1. The intention of the legislator. It is commonly admitted by
those who hold the purely penal law theory that no law is purely
penal unless the legislator intend to make it such.60 Furthermore,
the intention of the legislator to bind only to the penalty must be
proved, it may not be presumed.61 For the presumption is that
every law binds in conscience both to the act and to the penalty, as
is evident from the words of St. Paul to the Romans: "He who
resists the authority, resists the ordinance of God. . . . Wherefore
you must needs be subject, not only because of the wrath but also
for conscience' sake." 62
Two difficulties stand in the way of proving directly that any
legislator today has the intention of binding only to the penalty.
The first difficulty is the modern conception of the nature and
function of law. As Lopez says: "Among the great variety of opin
ion (concerning the nature of law) nearly all agree in this that there
is a complete separation between the juridic order and the moral
60 Cf. Castro, De Potestate Legis Poenalis, I, c. XI; Suarez, De Legibus,
V, c. IV, nn. 2, 3, and 7; Aertnys-Damen, Theol. Mor., I, n. 159.
61 Cf. Lopez, "Theoria Legis mere Poenalis," Periodica, 27 (1938), p. 209.
Lopez says: "Ad hoc ut lex aliqua, etsi poenam contra violatores contineat,
haberi possit ut mere poenalis, requiritur ut constet de positiva mente lcgisla-
toris, nolentis subditos obligare ad culpam, sed tantum ad poenam." Not all
authors admit this. Navarrus held that if the law contained a temporal pen
alty, i. e., a penalty to be inflicted in this life, the law bound only to that pen
alty unless the contrary were evident. Cf. his, Manuale Confessariorum, c.
XXIII. This also seems to be the opinion of Konings, Theologiae Moralis S.
Alphonsi Compendium (New York, 1882), I. n. 178; and of Vermeersch, The-
ologia Moralis (Bruges, 1926), I, n. 178.
62 Rom. 13, 2 and 5. As a matter of fact, this text is a very strong argu
ment against the whole purely penal law theory, for St. Paul makes a clear
distinction between the "wrath," i. e., the penalty, and "conscience," i. e., the
obligation in conscience. Yet he makes no distinction between laws that bind
only to the penalty and laws that bind to both the penalty and the act. The
exponents of the purely penal law theory interpret this passage as meaning
that a legislator has the power to bind to both the penalty and the act.
Analysis of the Various Views 105
'
106 The Moral Obligation of Paying Just Taxes
custom may become a formal custom, the legislator must approve the
custom in some way.69
It is evident that only a formal custom, i. e., one which has the
consent of the legislator, has any value as proof that tax laws are
purely penal laws. However, before the existence of a formal cus
tom can be proved it is necessary to prove the existence of a material
custom, since a formal custom is nothing else than a material cus
tom confirmed by the consent of the legislator. It is well to note
that the material custom in question here is not the mere fact that
some people do not pay taxes, but the fact that when people do not
pay taxes they do not judge themselves guilty of sin unless they
refuse to submit to the penalty.
In proof that a material custom of this kind does exist, gratuitous
statements such as the following are usually offered: "Sensus com
munis, which is the best interpreter of law, has always understood
the matter in this way." 70 Or this: "Even conscientious people
interpret tax laws of this country in this way." 71 These are mere
statements of the very fact that has to be proved. There is no at
tempt to substantiate the statements by questioning the people con
cerned. Following a general principle, which all admit, namely,
a fact must be proved, it may not be presumed, Bouquillon states
very bluntly: "Those authors exaggerate who say that sensus
communis ... his always understood tax laws to be purely penal
laws." 72 And regarding the actions of "conscientious people," Wag
ner very pointedly remarks that it is much more probable that con
scientious men pay taxes because they are conscientious."
^
Analysis of the Various Views 109
77 The principle quite commonly held, namely, that if the greater number
of people do not accept a law, the law does not bind (cf. S. Alph., I, 139),
would not affect the obligation of paying taxes unless de facto the greater
number of people did not observe the tax laws. This is true because the prin
ciple mentioned is based on the presumption that non-observance of the law
is an indication of the unreasonableness of the law. Actually most people do
pay taxes, therefore it cannot be presumed that it is unreasonable to pay taxes.
It is well to note that if de facto the majority of the people did not observe
a certain tax law, the presumed unreasonableness of the law would nullify
the entire law. In other words, there would be no obligation—either to pay
the tax, or to observe the penalty.
78 Disputationes Theologicae, III, n. 1010.
™Loc. cit.
110 The Moral Obligation of Paying Just Taxes
not make them merely penal, for this depends on the will of the legis
lator. Crolly might use this argument to persuade legislators to make
tax laws purely penal, but as proof that they are such, it is worthless.
Proof: B. Analysis of the Extrinsic Argument
The argument from authority, as it is used in moral theology,
consists essentially in an appeal to the judgment of others concern
ing the probative force of intrinsic arguments advanced in support
of a particular thesis. An argument from authority gives rise to a
degree of extrinsic probability and a presumption of intrinsic proba
bility in the opinion for which it is invoked. There are definite
norms for estimating the degree of extrinsic probability given to a
thesis or proposition by the "authority" of theologians. Damen
reduces these norms to three general rules. After considering each
norm separately, the opinion that tax laws are purely penal laws will
be judged according to the norms in order to determine the degree
of extrinsic probability that is to be predicated of this opinion.
The first norm is: "Reason alone, or internal arguments consti
tute the probability of opinions (and therefore a certain or notable
preponderance of probability) ; hence no opinion can be probable
unless it is also such from reason or from the arguments (i. e.,
intrinsic arguments)."80
In saying that "reason alone constitutes the probability of
opinions (and therefore a certain or notable preponderance of prob
ability)," Damen means that intrinsic reason is the ultimate basis
for all probability.81 Hence, if there are no intrinsic reasons for
the truth of an opinion, there can be no extrinsic authority which
will make the opinion probable; and if the intrinsic arguments for
the opinion are weak, authority can give the opinion only weak ex
trinsic probability. However, Damen does not mean that one who
accepts the authority of another need know the intrinsic reasons;
all he need know is that the person whose authority he accepts, is
capable of a prudent judgment concerning the value of the intrinsic
80 The three norms are taken from Aertnys-Damen, Theol. Mor., I, n. 93.
81 Cf. St. Alph., Dissertatio de usu moderato opinionis probabilis, n. 83.
This dissertation was published in the fifth edition of the saint's Theologia
Morolis, lib. 1, tract. 1, De Conscientia, n. 69 (Bononia, 1763), p. 21.
Analysis of the Various Views 111
85 This number includes not only those who hold the theory but also those
who, while upholding some other opinion as their own, allow that this opinion
is probable.
86 For example, Berardi says: "Nee desunt Theologi magni nominis qui
hoc probabile esse censent. (Lugo, Frassinetti, Navarrus, Gury, Alph.)." Lugo
holds that probably there is no obligation to pay a tax before demand for
payment has been made. He does not speak of the obligation being purely
penal up to the time demand is made, but it seems that his opinion would
exclude this theory. Cf. supra, p. 54. Frassinetti, Compendio d. Teol. Mor., I, p.
304, says merely that many authors consider tax laws purely penal laws and
points out that many circumstances may prompt the confessor to be lenient in
this matter. Gury follows St. Alphonsus who refused to pass judgment on the
probability of the opinion. Cf. supra, p. 62. For other examples of mislead
ing and gratuitous appeals to the argument from authority, cf. Ballerini, Opus
Tkeol., Mor., I, n. 154, p. 325: "Non defuere doctores, qui leges istas de tribu-
tis haberent tanquam leges ut plurimum poenales: confer Lugo disp. c. n. 38";
Bucceroni, Insti. Theo. Mor., I, n. 232; Genicot, Tkeol. Mor., I, n. 574.
J
Analysis of the Various Views 113
The Theory That All Tax Laws Are Purely Penal Laws Has
Little Probability Either from Intrinsic or
from Extrinsic Arguments
II. The Theory That All Taxes Are Due in Virtue of
Commutative Justice
1. Notion of commutative justice. Since it is proper to com
mutative justice to direct man in his relations with other men,88 the
subjects to be treated in the present consideration will be: first, the
termini of the relation, then the object of the relation (which may
be spoken of as the object of the virtue itself since the object of the
relation is the same thing as the object or matter of the virtue), and
finally, the mean or norm of the relation.
A. The termini of the relation. Justice (by which is meant the
virtue of justice in its most generic sense) directs man in his rela
tions with other men. As St. Thomas says: "Justice directs man in
89 Ibid., q. 58, a. 5.
90 Ibid., q. 61, a. 1.
91 It is to be noted that the terminus a quo of the relation which is directed
or governed by the various types of justice is the subject in which the virtue
resides. Thus the community qua community cannot be the subject of the vir
tue of commutative justice, any more than the individual qua individual can
be the subject of distributive justice.
V
Analysis of the Various Views 115
92 As was mentioned above (p. 113) the object of the relation is identical
with the object of the virtue itself.
83 II-II, q. 57, a. 1. Ius is often translated as "right," but the English
word is too narrow to convey a correct notion of the Latin term. For example,
ius civile is translated as "civil law."
94 De Iustitia et lure, disp. I, sect. 1. St. Alphonsus calls Lugo, "Princeps
inter alios theologos, post D. Thomam." (III, 552). The title is well deserved,
especially for Lugo's clear perception and presentation of difficulties that are
sometimes passed over.
116 The Moral Obligation of Paying Just Taxes
95 Op. cit., n. 6.
96 Op. cit., n. 6.
97 Commutative justice is often called strict justice because it has this "strict
right" as its object. Whenever the terms, "strict right" and "strict justice" are
used in this dissertation, they are to be understood in the sense just outlined.
98 Cf. Lugo, disp. VIII, sect. 1, and 2.
^
Analysis of the Various Views 117
on the prohibitive part of the virtue, for even though it may some
times be doubtful whether a person has or has not a strict right to
something, once this fact has been determined, commutative justice
enjoins everyone else to respect that right, and this consists in sim
ply not acting in contravention of that right. Of more importance
is the positive act prescribed by the virtue, since this act will be
involved if taxes are due in commutative justice.
St. Thomas calls this act "restitution" and says that it is "occa
sioned by one person having what belongs to another, either with
his consent, for instance on loan or deposit, or against his will, as in
robbery or theft." oa Restitution, therefore, is nothing more than
the setting aright of the relation between two individuals regarding
the strict right of one of them.100 The final point of inquiry then,
will be: how is this relation set aright? In other words, what is the
norm or mean whereby it is to be judged whether or not the relation
is correct? It is to be noted that until a person who possesses a
strict right over a thing is in some way separated from that thing,
he has no relations with other individuals based on that thing 101
and hence there would be no occasion for this act of commutative
justice with which we are concerned.
A person who possesses a strict right over a thing may be morally
separated from that thing in one of three ways: (1) he may give the
thing to some one else and in doing so he would voluntarily sever
the "peculiar connection which the thing has with him." Hence he
could not expect to receive any return, either of the thing itself or
of its equivalent; (2) he may loan, let, or entrust the thing to some
one else without relinquishing his right to the thing, or he may sell
the thing, i. e., give it to some one on condition that he receive the
equivalent; (3) the thing may be taken from him against his will.
St. Thomas calls the second and third way, voluntary and involun
tary commutations respectively.102 It is the function of commuta
tive justice to direct these commutations.
In the supposition that an individual has a strict right to a
thing and has not relinquished or forfeited that right, any other in
dividual who may actually be in possession of that thing bears a
relation to the owner by reason of the right which the owner enjoys.
If the owner be unwilling that another possess the thing, that thing
is not being employed to his utility as his right demands. Hence the
possessor has the obligation to restore the property or, if it has
perished through his fault, to restore the equivalent.103 This resti
tution must be made according to an exact equality of thing restored
to thing taken, for if more than the thing which was unjustly taken
be restored, the former owner now has more than his right demands;
if less be restored, his right remains unsatisfied. If the owner is
not unwilling that the thing should be in another's possession, for
example, when the owner has loaned, rented, or entrusted the thing
to another, the individual may retain the thing until such time as
the owner reasonably demands its return. Once the owner does
demand the return of the property, he who possesses it must return
it in such a way that the thing returned is no more and no less than
the thing loaned, leased, etc. This same equality of thing returned
to thing transferred must be present in other commutations, such as
buying and selling, etc. But in these latter commutations the thing
itself is not given back but its exact equivalent must be, for as St.
Thomas says: "In these commutations something is paid to an in
dividual because of something of his that has been received. . . .
Hence, it is necessary to equalize res with res, so that one person
should pay back to the other just so much as he has become richer
out of that which belonged to the other. The result of this will be
equality according to the arithmetical mean which is gauged accord
ing to an equal excess in quantity." 104 St. Thomas goes on to ex
plain: "Thus five is the mean between six and four, since it exceeds
the latter and is exceeded by the former, by one. Accordingly if, at
the start, both persons have five, the one that is the receiver, will
have six, and the other will be left with four: and so there will be
justice if both be brought back to the mean, one being taken from
him that has six, and given to him that has four, for then both will
have five which is the mean." 105
An analysis of the fundamental mean of commutative justice
makes it plain that the basic principle in both voluntary and invol
untary commutations is precisely the necessity of an exact equiva
lence between res and res. Without this equality we simply do not
have commutative justice. The importance of stressing this point
seems necessary since a careful reading of the defenders of the
theory that taxes are due in commutative justice would indicate
that they have not clearly and sufficiently realized this point.
2. Criticism of the theory that tax laws bind in virtue of com
mutative justice.
author who holds that tax laws bind in virtue of commutative jus
tice, bases his view on the existence of some kind of implicit pact
or contract between the citizens and the state.
The authors of the two centuries immediately following Suarez
(the seventeenth and eighteenth centuries), it is true, do not use the
terms, "contract" or "pact" in discussing the relations between state
and citizen, but they do speak in such a way that there can be no
doubt that they contemplated some kind of contract as the root of
the obligation of paying taxes.107 It was not until the second half
of the nineteenth century that the terms "contract" and "pact" were
commonly used.108
The hesitancy of the older authors to use the terms is probably
due to the suspicion with which Catholic theologians of the time
looked upon the efforts of some non-Catholic writers to establish
the thesis that the state is the result of a free contract. This sus
picion culminated in the condemnation of Rousseau's Du Contrat
Social in 1772. The discussions occasioned by this condemnation
brought out clearly the difference between Rouseau's contractual
theory of the origin of the State and the tenable theory held by
Suarez and others. Hence, later authors could use the terms "con
tract" and "pact" in reference to the obligation of paying taxes with
out fear of being misunderstood or of being accused of unorthodoxy.
However, if these authors did avoid the terms for the reason
stated, it would indicate that they did not understand the argument
used by Suarez. Suarez did not identify the contract, which accord
ing to him, gave rise to the obligation of paying taxes, with the
contract which he claimed gave rise to the state. Indeed no one
who considers the matter can attempt to identify these two con
tracts, for the contract which gives rise to the obligation of paying
taxes—in the supposition that one exists—necessarily presupposes
the existence of the state, for the state is one of the contracting
107 Billuart speaks of a "tacit promise," diss. IX, a. VII, n. 2. Concina, VI,
diss. V, c. V; and Patuzzi, tract. I, diss. III, c. 14, call the tax a stipend, indi
cating that they likened the relations between citizen and state to the relations
between employer and employee. Hence, they had in mind a sort of wage con
tract.
108 Cf. supra, pp. 65, 67.
V
Analysis of the Various Views . 121
109 Even K. Wagner, who is usually very exact, seems to miss this point
since he rejects the contract argument as proof that taxes are due in commu
tative justice on the ground that, "die Staatvertragstheorie der alten Scholastiker
vollstandig als ganz unhaltbar aufgegeben ist." Die sittlichen Grundsatze, p.
65. Wagner could not reject the argument for this reason unless he considered
the two contracts identical or at least so intimately connected that the truth or
falsity of the contractual theory of the origin of the state carried with it the
truth or falsity of the contractual theory of the origin of the obligation to pay
taxes. But Wagner gives no hint that he averted to the second possibility so
it would seem to be justified to infer that he identified the two contracts.
110 Aertnys-Damen, Theol. Mor., I, n. 840; cf. Merkelbach, Sum. Theol.
Uor., II, n. 451.
122 The Moral Obligation of Paying Just Taxes
tract must be something that can fall under the dominion of man.
In general, this means anything that can be the object of ius in the
sense denned above, i. e., anything that can have a peculiar con
nection with a person in such a way that the thing must be referred
to his benefit or utility exclusively.111 (c) The form of contracts.
The form of a contract is the consent which each contracting party
must freely give to the terms of the contract. This consent must be
internal, deliberate and free, in some way manifested externally, and
finally, it must be mutual.
The contract which is said to be the basis of the obligation of
paying taxes will be examined in order to show that such a contract
does not contain the three elements necessary to every true contract.
(a) The subject of the proposed contract. It has been seen that
the state must be one of the contracting parties. Most authors, it
is true, speak in such a general way as to give the impression that
when they refer to a contract as the basis of the obligation of paying
taxes, they mean the contract which, it is claimed, gives rise to the
state. But this cannot be, for the state is the terminus ad quem of
the obligation which the citizens have of paying taxes, therefore the
state must also be the terminus a quo, or subject of the obligation
to provide for the good of the citizens.112 In other words, the
But many persons who do not have the use of reason and who are
therefore incapable of making a contract, possess property which
is legitimately taxed by the state. The source of the obligation to
pay taxes in this case cannot be a contract unless it is granted that
the contract is made vicariously by the legal guardian of the person
involved. This seems to be a plausible explanation of the difficulty,
especially since the obligation of paying the tax devolves upon the
legal guardian. But even granting the plausibility of the explana
tion, there is no proof that any legal guardian ever made such a
contract for his ward, or was even aware of the necessity of mak
ing it.114
(b) The matter of the proposed contract. It is claimed that the
state agrees to provide whatever is necessary for the common good,
and the citizens, in turn, agree to pay taxes in order to meet the
expenses incurred by the state. It was stated above 115 that one of
the greatest weaknesses of the contract theory is the fact that the
state is one of the contracting parties. The truth of this statement
114 The exponents of the commutative justice theory might argue that such
a contract could be both vicarious and implicit. In fact it does seem that
guardians do make contracts that are both vicarious and implicit in other mat
ters that pertain to their wards. For example, if the ward requires treatment
by a physician, the guardian calls the physician with the understanding that he
will be paid out of the money that belongs to the ward. That such a course
would amount to a vicarious, implicit contract, is indicated by the fact that in
case the guardian failed to see to it that the doctor received his fee, the child
would be obliged in commutative justice to pay the doctor later on when he
attained the use of reason and had the administration of his property in his
own hands. But even granting that the doctor's fee is due in commutative
justice because of a "vicarious, implicit" contract, the obligation of the child
to support the state could hardly be due to a contract of this type. This is
more evident in the case of foundlings. The mere fact that the state cares for
these foundlings—when it does care for them—does not give rise to an obliga
tion on the part of the child to pay the state for the food, clothing, etc., that it
received from the state, even if later on the person were able to make adequate
payment. If there is no obligation in commutative justice to pay for benefits
so personal (i. e., pertaining exclusively to this person and to no other) and so
susceptible of exact measurement in terms of money, there could hardly be an
obligation in commutative justice to "pay for" the general benefits that come
from being the citizen of this or that state.
"5 Cf. supra, p. 123.
v
Analysis of the Various Views 125
similar objection might be brought out in the mutual relations of father and son.
It could be urged that the father has an obligation to supply the son only with
things that are strictly necessary. If the father gave the son a candybar, the
candybar could be the matter of a licit contract. But it must be remembered
that a posse ad esse non valet illatio. The truth is that fathers usually do not
sell candybars to their children and there is no proof that the state "sells
candybars" to its citizens.
118C/. supra, p. 122.
^
Analysis of the Various Views 127
good can be interpreted as meaning nothing more than that the state
recognizes its natural obligation of so acting. Only a person seek
ing to establish the contract theory would seek for a further explana
tion, and only the conviction that such a contract does exist would
lead to the conclusion that the action of the state is tantamount to
implicit consent to the contract. There are no intrinsic reasons for
such a conclusion.
The fact that a citizen accepts the protection and advantages
offered by the state could more logically be interpreted as implicit
consent to a contract giving rise to the obligation of paying taxes.
But again, this is not the only possible interpretation because the
citizen might be one of those who maintain that no such contract
exists. His acceptance of the benefits provided by the state could
not be interpreted as implying consent to a contract which he ex
pressly disavows. Acceptance of the benefits in his case implies no
more than the acceptance of that particular state as his state, to
gether with the acceptance of the obligations which are an essential
consequence of citizenship in any state.
Perhaps the most serious objection to the theory that the obli
gation of paying taxes is based on a contract, is the fact that nor
mally a man enters the state by way of the family, not by way of
contract. Even Seligman, a non-Catholic, was keenly aware of this
fact, which seems to have been overlooked by some theologians.
Arguing against those who claimed that taxes were paid because of
the benefit the tax-payer received from the state, Seligman says:
"The duty of supporting and protecting it (the state) is born with
us. In civilized society the state is as necessary to the individual as
the air he breathes; . . . His every action is conditioned by the fact
of its existence. He does not choose the state, but is born into
it. ..." (italics added.) 119 This does not mean that a man must
enter the state by way of the family; it simply means that most
men do enter the state through the family. This is only another way
of saying that historically and logically the state is made up of
families and not of individuals.120 It follows that there is no more
'
Analysis of the Various Views 129
122 The very fact that the agreement between state and citizen is called a
"quasi-contract" is clear proof that it is not a real contract, for the prefix
"quasi," while affirming similarity of two things, always implies an essential
distinction between them.
123 Cf. Wagner, Die sittlichen Grundsdtze, p. 65. Wagner will not admit
that this argument has any probability. "Es ist eben durchaus unrichtig dass
das staatliche Gemeinwesen und in demselben, wir betonen das wiederholt ganz
besonders, das rechtliche Verhaltnis zwischen Staateoberhaupt, zwischen Staats-
gewalt und Untertanen lediglich erst geschaffen oder begriindent durch einen
freien Vertrag."
i2*Theol. Mor., I, n. 831; cf. also, Bouquillon, Theol. Mor. Fun., n. 216.
>-5 Op. at., p. 82.
130 The Moral Obligation of Paying Just Taxes
126 By "public work" is meant any undertaking for the common good that
requires the expenditure of money.
Analysis of the Various Views 131
maintain that a tax law would be unjust if it did not take into con
sideration the ability of the subject to pay.127 But the very neces
sity of choosing this method of dividing the debt among the citizens
betrays an essential weakness in the argument under discussion,
because the premises of the argument rule out this method.
Damen argues that the expenses are made by the state, "in the
name of the community," and therefore, "the community is itself
bound to restore to the public authority." Since the community "is
nothing more than the union of members conspiring towards the
common good, the obligation falls on the members. ..." Damen
adds, "according to their ability," but there is nothing in his premises
to warrant this restriction. If the whole community is bound in
commutative justice to pay the debt to the state because the debt
was incurred in the name of the whole community, the members of
the community are bound because they are members of the com
munity; their ability to pay the debt would have nothing to do with
the extent of their obligation. Therefore the debt should be divided
according to the number of members in the community.
Bouquillon presents the argument a bit differently but his con
clusion is likewise not justified by his premise. He says: "Expenses
made for the benefit of the community by those who have the right
to act for the community, fall upon the whole community and upon
each member thereof according to the faculty of each." 128 If the
community is obliged to make good the expenses because they were
incurred for its benefit, each member of the community should be
obliged to make good that portion of the expenses which corresponds
to the amount of benefit he received from the expenditure.
The logical conclusion to the premise of the argument as given
by either Damen or Bouquillon, is an untenable conclusion, there
fore the argument must contain a fallacy.
As K. Wagner points out, the fallacy lies in the distinction which
is made between state and community.129 It is not immediately
evident that such a distinction is attempted for neither Damen nor
Bouquillon mention the state in their presentation of the argument.
However, since de facto taxes are paid to the state, the terminus ad
quern of the obligation must be the state. The argument could be
formulated thus:
Major premise—When a person legitimately contracts a debt in
the name of another, that other has an obligation in strict justice to
reimburse the one who contracted the debt.
Minor premise—The state legitimately contracts debts in the
name of the community.
Conclusion—The community has an obligation in strict justice
to reimburse the state.
The minor premise of this syllogism implies that the community
stands opposed to the state as a separate moral person with rights
and obligations distinct from those of the state, for if the state is
not distinct from the community, the state could not be the subject
of a right in commutative justice with a corresponding obligation
on the part of the community. As St. Thomas says: "Justice prop
erly speaking demands a distinction of supposits." 130 But are the
state and the community distinct supposits? Emphatically not.
The community is related to the state as material cause to total
effect.181 As such it is part of the thing that is the state and there
fore cannot be distinguished from it as another thing.132
180 II-II, q. 58, a. 2.
131 K. Wagner states the case very well. "Vor allem ist es nämlich unseres
Erachtens mehr als fraglich, ob es angängig ist, die steuererhebende staatliche
Gemeinwirtschaft oder den 'öffentlichen Körper' und die steuerzählenden Einzel
wirtschaften oder 'die Gesamtheit der Besteuerten' als getrennte selbständige
Rechtssubjekte einander gegenüber zu stellen. Denn will man in Hinsicht auf
die staatliche 'Gemeinwirtschaft oder den öffentlichen Körper' als moralische
Persönlichkeit nicht zu einem völlig inhaltsleeren 'Abstraktum' seine Zuflucht
nehmen, dann wird man unbedingt einräumen müssen, dass 'der öffentliche
Körper' und die Gesamtheit der 'Besteuerten' der Sache nach vollkommen
miteinander identisch sind, woraus sollte denn 'der öffentliche Körper' sich
zusammensetzen, wenn nicht prinzipiell aus der 'Gesamtheit der Besteuerten'?"
Op. cit., p. 82. It is interesting to note that Aristotle proclaims the identity of
the state and the community in the very first sentence of his Politics: "Every
state is a community of some kind." In saying that the state is a community
"of some kind," Aristotle means that there are other communities besides the
state, for example, the family community. In other words, while every state is
a community, not every community is a state. Cf. St. Thomas' commentary
on this passage, Politicorum, I, lect. 1.
132 A group of individuals may be considered in two ways: (1) as a mere
-
Analysis of the Various Views 133
multitude which is nothing more than an arithmatical total and hence an ens
rationis which is neither capable of group action nor susceptible of group obli
gations; (2) as an organized whole, unified by a conscious common purpose,
and therefore capable both of common action and of common obligations. It
is in this second sense alone that a group may be called a community and it is
precisely in this sense that the group is the material cause of the state. Cf.
St. Thomas, I-II, q. 17, a. 4; II-II, q. 48, a. 1; Contra Gen., IV, 35.
133 Theol. Mor., I, n. 831.
134 Man. Theol. Mor., I, n. 291.
135 This is probably due to two reasons: (1) the notion of eminent domain
is not so clear as one would suppose; (2) as an argument in proof of an obliga
tion to pay taxes in commutative justice, it labors under an unanswerable
difficulty.
136 Op. cit., I, n. 649.
187 Op. cit., II, n. 3.
138 Man. Theol. Mor., I, n. 764.
139 Loc. cit.
134 The Moral Obligation of Paying Just Taxes
of the goods of the citizens for his own advantage but only to pro
cure the good of the community."
The crux of the whole question of the right of eminent domain
is whether the state has a strict obligation to make equivalent com
pensation for the goods that it does expropriate under this power, for
if the state must make equivalent compensation, the power of emi
nent domain has nothing to do with taxation. In taxation the state
need not compensate the tax-payer so that he receives the equivalent
of what he gave in taxes.
Wouters does not make his position clear on the point. He says:
"The state can, when necessity or great utility demands it, deprive
a person of something by way of expropriation, as it is called, in
which case however, the owner of the thing is indemnified (quo casu
tamen indemnis reddatur)." 140 Thus he says nothing about the
extent of the compensation nor does he say that the compensation is
of obligation. Damen has a more positive statement: "... The
public authority cannot exercise the right of alienating the goods of
the citizens unless it makes due compensation." 141 But it is to be
noted that Damen does not say "equivalent compensation"; the
compensation "due" might not be sufficient to cover the loss sus
tained by the person whose goods were expropriated. Priimmer is
most exact. He says: "... it is not allowed to use the power of
eminent domain unless . . . equivalent compensation is given." 142
Most political economists are of the opinion that the obligation of
making equivalent compensation is inherent in the right of eminent
domain.143
However, no matter what the issue may be regarding the origin
of the obligation of making compensation, i. e., whether this obliga
tion is essential to the right of eminent domain or merely a limita
tion self-imposed by the government, the fact remains that "in all
144 Seligman, Essays in Taxation, p. 401 ; cf. Corpus Juris (ed. by W. Mack
and W. Hale, New York, 1920), XX, p. 643. "The exercise of the power of
eminent domain is subject to the constitutional right of the owner of the land
taken to just compensation. This right is now expressly guaranteed by the con
stitutions of practically all of the states, and even in the absence of such provi
sion in the organic law, the right to compensation has been recognized by the
courts as a fundamental right founded on natural justice, although there are
statements in some decisions which would indicate an opinion fo the contrary."
145 Seligman, loc. cit.
146 Cf. Priimmer, op. cit., I, n. 291.
147 Cf. supra, p. 115.
148 Cf. Ency. Soc. Sci., art. cit., p. 495; Seligman, op. cit., p. 401; Corpus
Juris, XX, p. 517; ibid., p. 527: "There is a clear distinction between the
power of taxation and the right of eminent domain. An appropriation under
'
'
136 The Moral Obligation of Paying Just Taxes
the power of eminent domain is in the nature of a forced sale to the state or
municipality . . . requiring compensation by the payment of a just price in
money."
14U Cf. infra, p. 152 ff.
150 Theol. Mor., II, 616. The Catechism of the Council of Trent has no
doubt about the obligation. It says: "Amongst those guilty of rapine (sic) are
included persons who do not pay, or who turn to other uses, or appropriate to
themselves customs, tithes, and other revenues, which are due to those who
preside over the Church, and to the civil magistrates." Part III, chap. VIII,
Q. X.
,
Analysis of the Various Views 137
day, only seven hold the opinion that taxes are due in commutative
justice. Of these seven, two (Priimmer and Merkelbach) leave the
impression that their assent is "notional" rather than "real." The
opinion could hardly be called common among the theologians of
the past hundred years. Nevertheless, an opinion which was taught
by such great theologians as St. Antonine, Molina, Suarez, Lugo,
Billuart and St. Alphonsus, is not likely to be entirely lacking in
foundation. But it is to be remembered that the authority of the
ologians can never give greater probability to an opinion than is
warranted by the intrinsic arguments for the opinion. In consid
eration therefore, of the weakness of the intrinsic arguments which
have been advanced in support of the theory that taxes are due in
commutative justice, the writer does not judge this opinion suffi
ciently probable to allow a confessor to impose an obligation in
commutative justice on a penitent, or to judge the gravity of tax
delinquencies according to the norms of commutative justice.151
'
138 The Moral Obligation of Paying Just Taxes
i
Analysis of the Various Views 139
maintain that this tax is merely a fee for the legal privilege inheri
tance entails, regard the tax as an impersonal or indirect tax.159
The obligation of paying this particular tax would therefore depend
upon one's point of view.160
A theory entailing such implications certainly seems to invali
date the possibility of objective obligations, at least in the matter
of taxes.
159 Ibid.
160 In the United States, citizens have no choice about the inheritance tax
because it is legally an indirect tax. Cf. Scholey v. Rew, 23 Wall 331; Knowl-
ton v. Moore, 178 U.S. 41..
161 Nicomachean Ethics, V, 2 (tr. by W. D. Ross, in The Basic Works of
Aristotle, New York, 1941), p. 1005 (Berlin Academy reference, 1130b). Here
after this work will be cited only according to the Berlin Academy references,
since Ross' translation has this numbering in the margin.
182 1130b.
163 1129b. Aristotle himself did not call this "legal justice," though in an
other place he speaks of "that which is legally just," by which he meant, "that
which originally was indifferent, but when it has been laid down (by law) is
Analysis of the Various Views 141
man who habitually- obeys the law is called a "just man." It seems
that the only reason Aristotle introduced the topic of "justice which
is entire virtue," was to explain the meaning of the common expres
sion "just man," and to point out that he was not going to treat that
general justice whereby men are "just." This approach was un
fortunate for posterity, for having indicated sufficiently what made
a man just, Aristotle dropped the matter and went on to analyze
distributive and commutative justice. As a result there has been
little room for basic disagreement about the nature of either dis
tributive or commutative justice; there has been little else but basic
disagreement about the nature of legal justice.
It will not serve the purpose of this dissertation to determine
the exact meaning of Aristotle's "justice which is entire virtue." In
any event, it is "doubtful whether from the text of Aristotle as it
stands an objective interpretation can arrive at a notion of a legal
justice which is not only identical with the whole of virtue, but is
also a determined virtue having its specific nature." 184
St. Thomas took the meager offering of Aristotle and from it
developed a doctrine of legal justice that was coherent and clearly
defined, but not complete. Again, it is not necessary to trace the
development minutely; it will be sufficient to state the results of the
development. These results are admirably summarized by W.
Ferree. They are: "(1) The introduction of a specific virtue of legal
justice; (2) having a specific object: the common good, instead of
the generic ad alium; (3) and hence differing from particular jus
tice not merely as whole to part, but as directed towards common
and particular good; (4) and directing the acts of all virtues to its
own end, rather than simply containing them as the whole its
parts." 165
The difference between Aristotle's conception of legal justice and
not indifferent." Cf. 1134b. In other words, as St. Thomas points out, this
"justum legale" is synonymous with "jus positivum." Cf. In X Libros Ethi-
corum ad Nicomachum, V, lect. XII (Opera Omnia, Parmae, 1876), XXI, p. 178.
164 This is the opinion of W. Ferree, The Act of Social Justice (Catholic
University Press, Washington, 1942), p. 12. This is one of the best works on
legal justice in modern literature.
165 Op. tit., p. 31.
142 The Moral Obligation of Paying Just Taxes
166 That St. Thomas contemplated a special sin of legal injustice is very
clearly stated by him in, II-II, q. 79, a. 3, where he discusses the question:
"Utrum omissio sit speciale peccatum?" He answers: "Dicendum quod omissio
importat praetermissionem boni, non autem cuiuscumque, sed boni debiti [all
italics in this quotation are added]. Bonum autem sub ratione debiti pertinet
proprie ad iustitiam; ad legalem quidem, si debitum accipiatur in ordine ad
legem divinam vel humanam; ad specialem autem iustitiam, secundum quod
debitum consideratur in ordine ad proximum. Unde eo modo quo iustitia est
specialis virtus, ut supra habitum est, et omissio est speciale peccatum distinctum
a peccatis quae opponuntur aliis virtutibus." This, taken together with the
passage to which St. Thomas refers in saying, "ut supra habitum est," can
hardly be interpreted in any other sense than the one given in the text. Cf.
II-II, q. 58, a. 6: "... iustitia legalis est specialis virtus secundum suam essen-
tiam; secundum quod respicit commune bonum ut proprium obiectum." Con
cerning the concept of legal justice in Aristotle, Lessius very aptly remarks:
"Aristotles per justitiam legalem videtur intelligere obedientiam, non ut est
virtus specialis, quae affectu praecepti facit opus, sed ut virtus generalis."
De Justitia et Jure, Sect. I, cap. I, dub. III, n. 16.
167 Cf. In Ethicorum, V, 2 and 3 ; II-II, q. 58, a. 6. As was pointed out
above (cf. preceding note) the bonum commune is a bonum debitum. By
this is meant that there is a relatio ad bonum commune in every human being,
arising from the social nature of man. Which is only another way of saying
that man cannot be a "good man" unless he be well ordinated towards the
bonum commune. As soon as a relatio ad bonum debitum exists, there is a
terminus ad quern of an obligation, and hence the need of a special virtue to
direct man in ordine ad bonum. Lugo stresses this "relational" aspect of virtue
in discussing the proper object of commutative justice. Cf. De Iustitia et lure,
disp. I, sect. I, n. 5 and 14.
^
Analysis of the Various Views 143
170 Cf. Ibid., p. 36. Ferree says: "It seems to be a common opinion that
St. Thomas excludes the possibility of an immediate and proper act of legal
justice, so that only acts of other virtues can be matter of this virtue."
i" II-II, q. 58, a. 5.
"2 I-II, q. 96, a. 3.
"3 In Etkicorum, V, 2.
174 Cf. Ferree, op. cit., p. 5. The arguments for this conclusion are devel
oped by H. Hering, "De Genuina Notione Iustitiae Gcneralis seu Legalis Iuxta
S. Thomam," Angelicum, 14 (1937), pp. 464-488. They are refuted very well
by Ferree, op. cit., chap. 2.
170 II-II, q. 58, a. 6.
i78 Ferree cites the example of Waffelaert, who accords legal justice one
paragraph and one footnote, "in a work on the moral virtues intended to be of
monumental proportions." Cf. Waffelaert, De Justitia, I, p. 19; Ferree, op. cit.,
p. 80. As Ferree points out in another place, most authors treat legal justice
after the manner of Aristotle—it is mentioned only to get it out of the way.
Op. cit., p. 10.
Analysis of the Various Views 145
177 Cf. Lessius, De Justitia et Jure, Sect. I, cap. I, dub. III: "Sed tota
difficultas est, quid sit haec justitia; quod ejus officium, et quo modo ab aliis
distinguatur; nam D. Thom. et Soto existimant quamdam esse virtutem par-
ticularem a caeteris omnibus, quae procuret bonum commune. Verum Vega, et
multi alii (italics added) putant esse complexionem omnium virtutum." Such
a dispute would not have been possible had Vega and the multi alii read both
Aristotle and St. Thomas carefully.
178 St. Thomas had already given the formal aspect (i. e., the "respectus ad
bonum commune") adequate treatment and once it is assumed that the mate
rial object of the virtue is only acts of other virtues, theologians could be "con
tent to let their whole treatise on the moral virtues stand implicitly as the de
velopment of their doctrine on the material object of the virtue of legal justice."
Ferree, op. cit., p. 1.
179 Cf. L. W. Shields, The History and Meaning of the Term Social Justice
(Notre Dame, Ind., 1941), p. 45; E. Lustoso, "Justitia Socialis, Problemas
terminologicos alrededor de un concepto nuevo," Estudios (Buenos Aires),
55 (1936), pp. 124-138; Brucculeri, "La Giustizia Sociale," La Civiltd Cattolica,
87th year (1936), Vol. II, p. 187; Ferree, op. cit., p. 79 ff.
180 Divini Redemptoris, para. 51. Unless otherwise stated all references to
the encyclicals of Pius XI are taken from Social Wellsprings (ed. by J. Husslein,
Milwaukee, 1942), II.
146 The Moral Obligation of Paying Just fax6i
181 This analysis is contained in the first chapter of Ferree's work, pp. 19-31.
182 Ferree's book was not available until January, 1944. It has not yet
been given the attention it deserves.
183 Op. cit., pp. 91-134.
wibid., pp. 19-31.
^
Analysis of the Various Views 147
he does not cite any authors to that effect and his own opinion was
that taxes were due in both legal justice and commutative justice,
hence the impression must remain an impression. Billuart says:
"The people must pay taxes not only from legal justice [italics
added] whereby the parts [i. e., the citizens] are obliged to work
together for the good of the whole, but also from commutative jus
tice." 191
It is likely that had Billuart been farther removed from the me
dieval tradition that looked upon the ruler as a "hired man" and
upon taxes as a "wage," he might have omitted the last five words
of the passage quoted. But Billuart was too thoroughly imbued
with the idea that the ruler owed his authority to an implicit pact
which gave rise to obligations in commutative justice in both ruler
and subjects to perceive that, by his own admission, the subjects
had obligations over and above obligations arising from any pact
"to work together for the good of the whole." Thus the term
"legal justice" is mentioned, the essence of the proof that taxes are
due in legal justice is explicitly given—though it may be inferred
from its obiter dicta character that Billuart did not realize its im
port—and the whole thing is forgoten for another hundred years.
John E. Pruner (1825-1907) was probably the first author to
maintain that taxes are due in legal justice to the exclusion of com
mutative justice. The opinion appears in his Lehre vom Recht,
published in 1857 at Ratisbon. Unfortunately, the writer was un
able to locate this work. For that reason it would be assuming too
much to claim with certainty that Pruner was the first author to
hold this opinion.19- The evidence at hand is a citation in the fourth
German edition of Gury's Theologia Moralis, published at Ratisbon
in 1868,103 and the fact that no author cites any work published
before 1857 for the opinion that taxes are due in virtue of legal
justice alone. The only shred of evidence against the priority of
Pruner in this matter is the fact that Ballerini, who certainly held
■
150 The Moral Obligation of Paying Just Taxes
the same opinion, was born twenty years before Pruner. However,
the first evidence of Ballerini's opinion is found in his edition of
Gury's Theologia Moralis, published in 1868 at Rome.194
It is to be noted that neither Pruner nor Ballerini maintained
that all taxes were due in legal justice,195 but they did maintain that
when a tax law imposes an obligation of paying taxes, that obliga
tion is one of legal justice and not commutative justice.
After 1875 the opinion that legal justice and not commutative
justice lay at the root of the obligation of paying taxes, gained
ground rapidly. It was held in one form or another by Marc,196
Lehmkuhl,197 Bucceroni,198 Sabbetti,199 Tanquerey,200 Wouters,201
Noldin,202 Wagner,203 and others. Wagner wrote a work dealing
ex professo of the obligation imposed by just tax laws. In this work
he comes to the conclusion that all just tax laws impose an obligation
in legal justice.204
194 Cf. n. 737, note 2. It is very probable that Ballerini included this opin
ion in the first edition of Gury which he published in 1866. This, too, is an
elusive work, but even if the opinion is contained in the 1866 edition, Pruner
still has a nine year lead.
106 Cf. supra, pp. 72, 74.
108 Cf. supra, p. 75.
197 Cf. supra, p. 76.
108 Cf. supra, p. 81.
108 Cf. supra, p. 77.
200 Cf. supra, p. 79.
201 Cf. supra, p. 78.
202 Cf. supra, p. 76.
203 Cf. supra, p. 80.
204 It might be asked why authors who hold that only indirect taxes are
due in legal justice, are treated in this historical summary of the opinion that
all taxes are due in legal justice. The inclusion of these authors—especially of
Pruner and Ballerini—is justified because any opinion which holds that even
some taxes are due in legal justice involves a denial of an axiom that held sway
from the time that theologians first began to discuss the nature of the obliga
tion of paying taxes until about the middle of the nineteenth century, namely,
"where there is an obligation of paying taxes, it is an obligation in (commu
tative) justice," cf. supra, p. 148. The first authors to deny this principle
held that indirect taxes were imposed by merely penal laws, but the denial of
this principle marked the beginning of the theory that all taxes are due in legal
justice alone.
,
Analysis of the Various Views 151
3. Criticism of the theory that all tax laws bind in virtue of legal
justice.
"-
152 The Moral Obligation of Paying Just Taxes
211 Cf. Molina, De lustttio et lure, tr. II, disp. 674, n. 3 ; Suarez, De Legibus,
V, c. XVIII, 4.
212 For the meaning of the Greek terms, see, George Liddell-Robert Scott,
A Greek-English Lexicon (Oxford, 1897).
154 The Moral Obligation of Paying Just Taxes
218 De Justitia, I, lib. II, n. 192; cf. Priimmer, Man. Theol. Mor., I, n. 290;
Merkelbach, Sum. Theol. Mor., II, n. 626. Merkelbach uses this text to prove
the thesis: Tributa de iure et per se obligant in conscientia. But since he holds
that tax laws can be purely penal, the meaning he takes out of the text is: tax
laws may oblige in conscience to the act or not, depending on the will of the
legislator.
Analysis of the Various Views 155
This text also has been used to prove that taxes are due in com
mutative justice. Again the conclusion is based on two elements in
the text, neither of which warrant the conclusion. These elements
are, (a) the public authorities are called ministers, (b) the use of
the word "render."
(a) Suarez and Molina use this argument. St. Paul calls the
public authorities "ministers," therefore they should be recompensed
for their ministry. Suarez puts it thus: "Reddite omnibus debita:
cui tributum, tributum, etc. Et rationem reddidit, quia ministri Dei
sunt, in hoc ipsum servientes. Ideo enim, inquit, tributa praestatis.
Ergo hae leges, ut tales sunt, nullo modo possunt dici poenales; sicut
leges taxantes pretia rerum, vel stipendia operariorum, aut militum,
non possunt dici poenales respectu eorum, qui talia stipendia solvere
coguntur, quia in eorum utilitatem vel commodum illae res vel
munera fiunt." 214 Molina says: "Haec nostra sententia ita explicata
confirmatur ex illo ad Rom. 13. Ideo et tributa praestatis, ministri
enim Dei sunt, in hoc ipsum servientes. Quasi ratione ministerii,
quod exercent, reipublicaeque administrationis, debita principibus
sunt tributa."215
The force of the argument in both authors hinges on the
word "minister," the Greek, tairugyoc;. Etymologically, the word
tamjoyog means "one who performed a h-irvgyia." It is inter
esting to note that originally, a tamjoyia was a "burdensome
public office which the richer citizens performed at their own
expense." However it gradually lost its altruistic connotation and
meant simply, "any service or work of a public kind." In the first
century a. d., taiTupyoc; ordinarily meant, "who who performed
a public work." Its basic meaning both in this sense and in any
other it may have had, was always, "one who does something for
(i. e., both in the place of and for the advance of) somebody else."
Both Suarez and Molina fasten on this basic meaning of the word
and interpret St. Paul incorrectly as meaning that the rulers are
"ministers" because they perform public works for (in the place of
and for the advantage of) the people, for both authors argue that
one who performs a public work should receive a stipend from the
people for the work. But this is certainly not the meaning of St.
Paul. St. Paul was not proving that taxes are due in commutative
justice. The entire passage is an exhortation to civil obedience and
St. Paul is careful to point out the reason why civil rulers should be
obeyed: "For there exists no authority except from God and those
who exist have been appointed by God." It follows, from the divine
source of the authority, that disobedience to the rulers is disobedience
to God. St. Paul proposes another reason for not resisting civil au
thority: "But if thou dost what is evil, fear, for not without reason
does it carry the sword. For it is God's minister, an avenger to exe
cute wrath on him who does evil." In St. Paul's mind, the rulers are
called ministers because they take the place of God, not because they
take the place of the people. The ruler takes the place of God; he
does God's work, with God's authority. Hence the ruler is to be
obeyed and feared if he is not obeyed. If any obligation in com
mutative justice can be wrung from this passage it would be an obli
gation on the part of God to recompense the rulers for they are His
ministers.
(b) There is some prima facie justification for arguing that
"render" in this passage implies a debt in commutative justice for
the original Greek text reads: dutooote naoi ta; oqpeddg. The object
of "render" is 6q>eiXag and this word literally means a "debt."
Therefore the passage could be translated: Pay all debts (Return
things owed to everyone). But the key to the correct interpreta
tion of djtoootE jtaoi tag ocptiMg is found in the things which it
governs. 'Arcooote jtdai tag 6<pEiXag is a general principle which is
immediately particularized by four concrete examples: Tq> tov (popov
tov qpooov, top to xekoq to teXog, xw tov q>66ov tov qp66ov, Tq> rrrv
Ti[iT)v ttiv TiuT^v. Three of these examples justify the interpreta
tion which sees in dbtoooxe a reference to an obligation in commuta
tive justice. But one of the examples does not lend itself to this
interpretation. "Tribute," "taxes," and "honor" might possibly be
owed in commutative justice, but "fear" is certainly not due in com
mutative justice. Since St. Paul says all four things are "due," his
statement of the general principle, "Render to everyone his due,"
must be interpreted in such a way that it will include the four exam
Analysis of the Various Views 157
2ieCf. Billuart, De Jure et Justitia, diss. IX, art. VII, para. 2; Aertnys-
Damen, Theol. Mor., I, n. 831.
217 La Theorie de Leges Mere Poenales, p. 59.
218 Die sittlichen Grundsatze, p. 57.
158 The Moral Obligation of Paying Just Taxes
210 Cf. Hcring, "De Genuina Notionc," Angelkum, 14 (1937), p. 464 ff.
220 Cf. The Act of Social Justice, pp. 39-63.
22i Cf. II-II, q. 58, a. 6.
Analysis of the Various Views 159
I
160 The Moral Obligation of Paying Just Taxes
mon goods and the common burdens. To put it in another way, the
right of the citizen to the goods of the community is a right in dis
tributive justice, not in commutative justice.224
(4) The immediate obligation of paying taxes is probably an
obligation of piety. From what has been said of the virtue of legal
justice, the meaning of the phrase, "the immediate obligation of pay
ing taxes," is sufficiently clear. It is an obligation flowing directly
or proximately from some virtue which is itself ordinated toward
the common good by legal justice. Of the three particular virtues
which have been proposed as fulfilling this function, the first, com
mutative justice has been treated, the second, obedience, is so evi
dently not the sought-for virtue that it need not receive special at
tention,225 the third, piety, is proposed as the virtue which probably
gives rise to the immediate obligation of paying taxes.
224 The teaching that taxes are not due in commutative justice, sometimes
occasions the startled question: Then there is no obligation of making restitu
tion? The answer to the question is so evident that one wonders why it is
asked at all. It seems to betray a feeling that once the obligation is commu
tative justice goes, everything goes, as though commutative justice were the only
hold on a man's conscience. The answer, of course, is an unqualified: no, there
is no obligation of making restitution. But the matter does not stop there.
If there is an obligation of paying taxes, the obligation remains as long as the
law imposing the obligation of paying taxes is effective, for the time element in
tax laws is tempus ad urgendum obligationem, not tempus ad finiendum obliga-
tionetn. Therefore a person who fails to pay his income tax this year is not
automatically excused from the obligation of ever paying it. It might be urged
that in effect this amounts to restitution, since the state will get the money if
the citizen lives up to his obligation. There is no difficulty in agreeing that the
effect on the state treasury will be the same whether the obligation is called an
obligation of making restitution or simply an obligation of obeying a law that
has not yet been complied with. At the same time it is worth insisting on the
exact use of terms for the obligation of making restitution is governed by one
set of principles and the obligation of observing laws, is governed by another
set. Thus it sometimes happens that the obligation of observing the law would
not be urged whereas the obligation of making restitution would be urged.
225 Obedience may be taken on two senses, materially or formally. Material
obedience is found in every act of compliance with a precept. As Billuart says:
"Material obedience is a certain general virtue or rather a circumstance [italics
added] of every good act that is prescribed; and disobedience also, taken in this
material sense, is a general sin or circumstance of every sin." Tr. de Caeteris
Analysis of the Various Views 161
There are two reasons for qualifying the proposition under con
sideration as only "probable." There is first of all, the slight degree
of probability of the theory that the immediate virtue in the case is
commutative justice. Secondly, there are no absolutely convincing
reasons pointing unmistakably to piety as the virtue concerned. The
lack of certainty on the second count is itself due to lack of clear
knowledge of the nature of piety as a virtue, for if there were no
doubt as to the essence of piety or as to the limits of its proper
sphere of action, there would be no difficulty in deciding whether the
act of paying taxes belonged to piety or not.
The general haziness concerning piety is woven right into the
definition of the virtue. Thus Merkelbach says: "Pietas est virtus
qua parentibus et patriae obsequium et cultus tribuitur." 228 "Offi-
cium et cultus" is usually translated as "service and homage"—
terms that can be applied to almost any act performed for another
out of any motive other than commutative justice. The definition
makes no mention of the special aspect of the object (parentibus et
patriae) which constitutes the motive for rendering service and hom
age to parents and country. Nor does it bring out the fact admitted
by all that there are obligations in piety residing in parents and
country. Concerning the object of the virtue St. Thomas, after stat-
Virtutibus Justitiae Annexis, diss. II, a. 1. Obedience in this sense is not a vir
tue, hence it could not be the particular virtue giving rise to the immediate
obligation of paying taxes. "Formal obedience," to quote Billuart again, "is
the execution of the prescribed act, because it is prescribed." Formal obedience
is found only in those acts which are executed precisely, though not necessarily
exclusively, because they are prescribed. Formal obedience is a special virtue
because, as Billuart says: "it has a special object, namely, the precept of the
superior formally as precept." This special virtue of obedience could not be the
immediate virtue whereby taxes are to be paid, for as St. Thomas says: "The
aspect of precept, which obedience considers, occurs in acts of all virtues." II-II,
q. 104, a. 2. Therefore there is nothing proper to the act of paying taxes as
such that could be the object of obedience. The only aspect in the act of pay
ing taxes which obedience considers, namely, the aspect of fulfillment of a pre
cept, is not proper to this act but is common to acts of all virtues. However,
since the "aspect of precept" is present in every act of paying taxes, the act
could be made an act of obedience by the intention of the one performing the
act.
226 Sum. Theol. Mor., II, n. 816.
"
'
162 The Moral Obligation of Paying Just Taxes
ing that a special virtue is one that regards an object under a special
aspect, says: "Since then, the nature of justice consists in rendering
another person his due, wherever there is a special aspect of some
thing due to a person, there is a special virtue. Now a thing is in
debted in a special way to that which is its connatural principle of
being and government. And piety regards this principle, in as much
as it pays duty and homage to our parents and country, and to those
who are related thereto."227
Piety, then, is a special virtue; it has as its objectum quod,
service and homage; its objectum cut, parents and country; its
objectum formale quo, that special debt that is owed to one's con
natural principle of being and government.
It is evident that if the paying of taxes is to be brought under
piety, it would be included under service, not under homage, for as
St. Thomas remarks: "Homage refers to reverence or honor." 228
But unfortunately discussions regarding the acts of piety which are
demanded of the citizen toward the state are usually limited to acts
of homage.229 Perhaps the reason for this is to be found in St.
Thomas, who maintains that ordinarily service is only per accidens
required of a son toward his parent. He says: "We owe something
to our parents in two ways: that is to say, both per se and per
accidens. We owe them per se that which is due to a father as such:
and since he is the son's superior through being the principle of his
being, the latter owes him reverence and service. Per accidens, that
is due to a father, which it befits him to receive in respect of some
thing accidental to him, for instance, if he be ill, it is fitting that his
children should visit him and see to his cure; if he be poor it is
fitting that they should support him; and so on in like instance, all
of which come under the head of service due." 2S0
'
s
Analysis of the Various Views 163
' "
CONCLUSION
104
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Bibliography 169
I
172 The Moral Obligation of Paying Just Taxes
-
Alphabetical Index 173
Legal justice, meaning of, 140; ac Molina, 43, 58, 137, 155; use of terms
cording to Aristotle, 140; accord by, 15; norm for confessors, 53.
ing to St. Thomas, 140; sin of Monopolistic control of business by
legal injustice, 142; as a specifi the state, 5.
cally distinct virtue, 143; material Moral obligation and prescription of
cause of, 143; theory of taxation, law, 103.
history of, 148 ff; criticism of the
theory, 151 ff. Navarrus, 30, 89, 90.
Legislator, intention of, in purely Noldin, 76.
penal laws, 104. Non-acceptance of law by the people,
Lehmkuhl, 76, 138. 109.
Lessius, 145—note 177. Non-contractual revenue, 6.
License, 2. Non-gratuitous revenue, 1 ; classifica
Limitation of right of eminent do tion of, 2; division, 5.
main, 134. Obedience, 148, 160; formal and
Linsenmann, 95. material, 160—note 225.
Lopez, 104. Obligation of a purely penal law, 94.
Lugo, 49, 115, 137; misquoted by Be- Obligation of declaring taxable goods,
rardi, 36; misinterpreted by Geni- 68, 71, 72, 79, 81.
cot, 37. Obligation to pay before or after
Luther, his estimate of Angelus, 28— demand, 44, 46, 49, 50, 54, 55, 57,
note 3. 72, 73, 81.
Mansi, 49. Officium et adtus, as the acts of piety,
Marc, 75, 106. 161.
Marres, 66, 154.
Material cause of law, 98. Patriotism, 151.
Material cause of legal justice, 143. Patuzzi, 57.
Material custom, 106. Pcdagium, 28.
Material obedience, 160—note 225. Penal law, cf. purely penal law.
Matt. 22, 15-22, analysis of, 152. Penal power, nature of, 6.
Medieval tradition, influence cf, on Physiocrats, 16.
Billuart, 149. Pietas, definition of, 161.
Melandri, edition of Gury, 61. Piety, 151; as the source of the obli
Merkelbach, 71, 87, 111, 137, 161; gation of paying taxes, 160.
definition of a purely penal law, 28; Pius XI, 145.
on custom in modern states, 108. Poll tax, 2.
Michiels, 87. Priimmer, 68, 87, 133, 136; definition
Mill, J. Stuart, notion of direct and of taxes, 13.
indirect tax, 20. Pruner, 74, 136, 149.
"Minister," meaning of, in St. Paul, Public authority, purpose of, 97.
155. Public loans, 1.
Miscellaneous arguments for the pure Public property, sale of, 1.
ly penal law theory, 108. Public revenue, division, 1 ff ; sche
Mixed law, definition of Castro, 88; matic division, 12.
of Billuart, 93. Public work, definition, 130.
'
174 The Moral Obligation of Paying Just Taxes
^
Alphabetical Index 175
'