Article — Marc, Institutiones Morales
Article I: On the Promulgation of Law
- DEFINITION. Promulgation is the public denunciation of a law made by legitimate authority to a community.
It is called 1. public, that is, with some solemnity; 2. made to the community; because law of itself regards only the community, and not particular persons as such, but only as parts of the community. Hence it differs from divulgation, by which namely the knowledge of a law already promulgated comes to several or all subjects.
- PRINCIPLES. I. Promulgation is absolutely necessary so that law may acquire the force of obliging. This is evident from the Body of Law itself (Can. In istis, D. 4), where it is read that "laws are instituted when they are promulgated." For law is a rule imposed on a community (cf. n. 109).
Hence it is inferred: 1. If someone knew that some law had been established, he would not be bound to observe it unless after it had been promulgated.
A doubtfully promulgated law does not oblige, unless it has already been received by use. Recall what was said n. 46.
He who invincibly does not know the promulgation made of a law is excused from fault before God by defect of knowledge; but not by defect of law, which, as promulgated, has the force of obliging. It is otherwise in the external forum, because knowledge of law, at least after some time, is presumed to have been divulged of itself; and therefore the burden of proving invincible ignorance lies upon him who brings forward the excuse of invincible ignorance (H. Ap., II, 22). And in this way the rule of law is to be understood: Ignorance of fact, not of right, excuses (V, n. 4).
- II. The mode of promulgating laws is various in various regions, and depends on the judgment of the legislator, whether it is made through a herald, or by public affixing, or in any other way whatever. The reason is that no mode is determined by natural right; and, from the nature of the thing, that mode suffices by which knowledge of the law comes to at least the greater part of the community (I, n. 96).
Hence: 1. Episcopal laws (Benedict XIV, de Syn., l. 13, c. 4, n. 1) oblige immediately from promulgation, and promulgation in the episcopal city (or in synod for the clergy) suffices, unless otherwise established by the bishop. 2. Civil laws oblige after promulgation has been made according to the custom of the provinces.
- Pontifical laws. IT IS ASKED 1. What is the mode of promulgation of pontifical laws?
Resp. Distinguish. 1. If the matter concerns laws, or Constitutions, in the matter of faith and morals, it is certain that these do not need public denunciation: as soon as they become known, they oblige everywhere; because they contain nothing new, but are mere declarations of natural and divine right already promulgated.
- If the matter concerns disciplinary laws, formerly there were distinguished laws which expressly required promulgation in the provinces, laws which were promulgated at Rome with the usual clauses and affixing in certain places, and laws which were published without clauses. But in the present discipline, namely from the year 1909, one ordinary mode alone is admitted (a special determination being excluded) of promulgating any pontifical laws whatever, from the Constitution Promulgandi of our Most Holy Lord Pope Pius X, given on September 29, 1908; and this mode is the insertion of the law or decree in the official Commentary which is entitled Acta Apostolicae Sedis.
These are the words of the Constitution: "But we will that Pontifical Constitutions, laws, decrees, and other decisions both of the Roman Pontiffs and of the Sacred Congregations and Offices, inserted in that Commentary by mandate of the Prelate from the secretaries or of the higher minister of that Congregation or Office from which they emanate, and published to the people, by this one and unique method be held as legitimately promulgated, whenever promulgation is needed, nor has it otherwise been provided by the Holy See" (A. A. S., I, p. 6).
IT IS ASKED 2. Whether pontifical laws oblige as soon as they are promulgated?
Resp. 1. If the time from which their observance urges is determined by the legislator himself, they by no means oblige before the established term.
Thus Pius IV for the decrees of Trent, Pius X for the obligation of the decree Ne Temere, for the introduction of the new Psalter, etc., established a special time.
Resp. 2. If the time is not determined, according to St. Alphonsus, pontifical laws do not oblige before two months, according to the norm of Roman law.
The reasons are: both because such a space of time even now seems required so that knowledge of the law can morally and in a certain way come to all regions, even distant ones; and especially because within that space no other is determined absolutely by authors (I, n. 96; ed. G., I, p. 75).
These things St. Alphonsus says. Benedict XIV (de Syn., l. 13, c. 4, n. 2), with the common opinion, defends the other opinion: namely that pontifical laws oblige immediately after promulgation. But that the opinion which seemed more probable to St. Alphonsus now, after the publication of the official Commentary, remains probable, we would no longer dare to affirm. It is certain that the Holy See rejected as invalid the vows of those who had professed after the promulgation of the decree Ecclesia Christi, with no mention made whether the profession had been made after two months (A. A. S., II [1910], p. 36).
- Note. Although with the promulgation of law properly so called there cannot be confused the means employed for the divulgation of the same law, such as insertion in the Bullarium, communication made by Bishops, the report of a person worthy of faith, and other similar things; nevertheless it must be admitted that solemn promulgation can sometimes be supplied by equivalent promulgation, which is had by fact, namely by use and the report of authors. On this matter St. Alphonsus notes (I, n. 106): "Not only pontifical Constitutions which have been solemnly promulgated induce the obligation of law; but also others which, from the use and consent of the universal Church, already for several centuries, are held as sufficiently promulgated and authentic."