Whether promulgation is of the essence of law?

I suppose that some promulgation is necessary for the law in order that it oblige in act: because, as was said, law is the rule of human acts, and these cannot be regulated by it unless it become known; but it becomes known through promulgation.

I said, some promulgation, because it is different according to the diversity of laws. The eternal law¹ and the natural law is promulgated to each one through the dictate of reason. The positive divine law is promulgated either by internal revelation, as in the prophets, or solemnly, as the old law on Mount Sinai, the new law on the day of Pentecost. Usage, however, has prevailed that human law be always promulgated with some solemnity, and thus reason requires. For since the human legislator bears a double person, private and public, he ought to propose the law in such a way that he signify that he proposes it as a public person, which is done by employing some solemnity. ¹ The eternal law, as such, is not promulgated, but remains hidden in the divine mind. But if it go forth outside the divine mind and be communicated to rational creatures through the intellectual light, then it is for them the natural law; and thus considered it is promulgated to each one through the dictate of reason.

If you say that promulgation is not required for the revocation of a law, I reply that the revocation of a law is not a law, but the destruction of a law. More is required, however, to constitute a thing than to destroy it. For the reply to the question

^{1 1} The eternal law, as such, is not promulgated, but remains hidden in the divine mind. But if it go forth outside the divine mind and be communicated to rational creatures through the intellectual light, then it is for them the natural law; and thus considered it is promulgated to each one through the dictate of reason.

I say: It seems more probable that promulgation is not of the essence of law, but is only a condition required irreplaceably in order that it oblige in act, just as, e.g., the proposal of the object is a condition required irreplaceably in order that it be loved.

It is proved. To the essence of law it suffices that it have an aptitude to direct and to oblige; for the essences of things are defined by first act or aptitude, not by second act, as the philosophers teach. But law before promulgation has an aptitude to direct and to oblige; for it has not this aptitude from promulgation, but its actual direction and obligation as from a condition. Therefore.

It is confirmed. Law is the rule by which we are induced to act, or withheld from acting, with some obligation. But promulgation is not a rule, nor part of the rule, nor does the force of obliging, or actual obligation, proceed from it as from a cause, since this ought to be from a superior as from a cause, but only as from a condition: just as heating is not from approximation as from a cause, but from fire, although it depends upon approximation as upon a condition.

As to St. Thomas, whose mind is disputed, he teaches here a. 4, that promulgation is related to law as the application of the rule to the thing ruled; but the application of the rule is not of its essence, but supposes it constituted. Whence, when he there says that, in order that the law obtain the virtue of obliging, it must be promulgated, he understands the virtue of obliging in second act, not in first act.

[Thus Billuart. But proceeding further and restricting the question to positive law, whether divine or human,

I say: Promulgation is of the essence of law.

It is proved. 1° That without which a thing has not its own being pertains to its essence. But before promulgation the law has not its own being. Therefore promulgation pertains to the essence of law. — The minor is proved. What is only in potency has no being. But so long as the law is not promulgated, it is only in potency. Therefore then it has not its own being. — The minor is evident; for so long as the law is not promulgated, whether it remain hidden in the mind of the legislator, or the legislator have externally manifested his intention of enacting such a law, nothing is perceived except a mere proposal. But this proposal is not law, but only the preparation of the law; and preparation indeed leads a thing toward being, but, until the last act be posited, leaves it in potency. Therefore, so long as the law is not promulgated, it is only in potency.

2° The law is not fully constituted, that is, it is not true law, unless it have the force of obliging. But the law obtains the force of obliging through promulgation, and not otherwise. Therefore, until it be promulgated, it is not true law. — I subjoin. That without which the law is not true law pertains to its essence. But the law is not true law before promulgation. Therefore promulgation is of the essence of law.

3° Law is an ordinance of reason for the common good. But it is not such unless it be made known to the community; and this making known is promulgation made by him who has the care of the community: whence promulgation is contained in the definition of law. Therefore promulgation is of the essence of law; for the definition expresses the very essence.

4° The same is proved by the authority of St. Thomas, here q. 90, a. 4.

The mind of the Master in this place was disputed. Some say with our Billuart: St. Thomas says that promulgation is related to law as the application of the rule to the thing ruled. But the application of the rule is not of its essence, but supposes it already constituted. Therefore the holy Doctor does not place promulgation in the essence of law, but declares only that it is a condition without which the law does not oblige. — If the words of the Angelic Doctor be rightly weighed, his contrary mind will clearly be perceived. In the place cited he solves the following question: « Whether promulgation is of the notion of law? » In the head of the objections the negative proposition is read: « It seems that promulgation is not of the notion of law; » whence whoever has understood the method of the author must straightway conclude that he champions the contradictory proposition, which is equivalent to our proposition; thus he proceeds in the body of the article: « Law is imposed on others by way of rule and measure. But rule and measure are imposed by the fact that they are applied to those things that are ruled and measured. Wherefore, in order that law obtain the force of obliging, which is proper to law, it must needs be applied to men who ought to be regulated according to it. Such application is made by its being brought to their knowledge through promulgation itself. Wherefore promulgation itself is necessary in order that law have its force. And thus from the four things premised may be gathered the definition of law, which is nothing else than a certain ordinance of reason for the common good, promulgated by him who has the care of the community. » This definition is the conclusion of the whole article; and after describing the law in itself and with regard to subjects whose actions he cannot rule and measure unless he reach them through promulgation, St. Thomas places this promulgation in the definition of law. But he would not have assigned this place to promulgation had he not held it essential to law. Therefore he held it as such.

It is confirmed by the axiom of law related above, dist. 4, cap. 3: « Laws are instituted when they are promulgated, » where the promulgation of the law is given as its very institution. Therefore from promulgation the law receives that it is true law. Therefore promulgation is of the essence of law. And this is intimated by Justinian, saying, c. de Legib., in leg.: « The most sacred laws ought to be understood by all, that all, their precept being more clearly understood, may decline what is forbidden and do what is commanded. »

You will say: The law obliges not only those to whom it has already become known, but also those who are ignorant of it, as appears in laws irritating contracts, which produce their effect even toward those to whom they are wholly unknown. Therefore promulgation is not necessary in order that the law oblige. Therefore consequently it is not of the essence of law.

I answer. I deny the consequence. For it is one thing the divulgation of a law, another its promulgation, as the Salmanticenses note, cap. 1, n. 74. For divulgation there is required that the law become personally known to each subject; for promulgation indeed it suffices that it have been notified generally to the community, so that any private person can easily come to know it. Further, the law does not receive its intrinsic virtue of obliging from divulgation, but from promulgation, so that as soon as it has been intimated to the community it binds all subjects at least in the external forum, since all are juridically presumed not to be ignorant of it. A distinction must be made between irritating laws, by which subjects, even though unknowing, are rendered unfit in either forum for determinate acts, on account of the motive of the public good, and laws which render certain acts illicit and bind conscience.

Laws of the latter kind are true laws once they have been intimated to the community, and toward all they hold their obligatory force. But if they have been insufficiently divulged, so that they have not become known to some, although even toward subjects of this kind they rejoice in all the marks of true law, nevertheless they do not bind them in the internal forum, because these are laboring in invincible ignorance, which excuses from formal sin; and respectively toward them such laws ought to be regarded as not promulgated. And in this sense we understood the principle: « A doubtful law is no law, » in our dissertation on moderate Probabilism.

You will ask whether a sufficiently promulgated law obliges all, even those who invincibly are ignorant of it.

I answer. More probably affirmatively: because 1° the law in promulgation is directed not only to those present, but also to the absent. Therefore it comprehends them also. 2° Because, if a credible private person denounce to an absent person a sufficiently promulgated law, he will be bound to observe the law, and will sin by transgressing it. But this obligation does not arise from that private denouncer. Therefore from the promulgated law. Therefore before the denunciation it obliged.

Nevertheless all concede that those who invincibly are ignorant are excused from fault and from punishment for transgressing the law; but if the law were not only prohibitory but also irritative of some act, the act would be invalid even in one invincibly ignorant, as, e.g., clandestine marriage in places in which the Tridentine [decree] is sufficiently promulgated.