Article — Marc, Institutiones Morales
Article II: On the Acceptance of Law
- DEFINITION. Acceptance of law is the formal or virtual consent of the people (at least as to its greater and sounder part) to the observation of a duly promulgated law (I, 138).
- PRINCIPLES. I. The acceptance of the people is not required for the essence and obligation of law. The reason is that if the acceptance of the people were necessary, the prince could no longer, when the people resisted, sufficiently consult the common good. Add that a power cannot be called legislative in the true name if the people could resist it at will. Hence deservedly was the proposition condemned: "The people does not sin, even if without any cause it does not receive the law promulgated by the prince" (proposition 28 from those condemned by Alexander VII).2
Therefore: 1. In States, as they say, representative and democratic, the people, through its deputies, indeed participates in instituting laws, but ought to obey laws rightly published; otherwise the whole order of society would be overthrown.
A doubt having arisen, namely whether the law has been accepted, does not remove the obligation (I, n. 97, 6; III, n. 112). For the law possesses, and the presumption of obedience on the part of subjects also possesses, nor is the principle just stated weakened by this doubt.
Acceptance on the part of princes is not required in order that ecclesiastical laws oblige. Therefore the Church rightly rejected the royal placet (Vatican Council, III). It can happen, however, that the Church does not wish to urge the observance of her laws if, on account of the detraction of princes, their observance would become too onerous (cf. n. 201), or if their promulgation has been impeded (cf. Sweens, Theol. fund., n. 276, concerning the Royal Placet).
(2) Thus Cajetan, Valentia, Lessius, and Navarre taught, in Diana (see Viva, on this proposition).
- II. Defect of acceptance brings it about per accidens that law sometimes does not oblige. The reason is that laws whose observance is neglected finally pass into desuetude; or because they are revoked by the legislator expressly or tacitly.
Therefore a law DOES NOT OBLIGE (I, 139; H. Ap., II, 11 ff.): 1. If it has not been accepted for ten years. For such a space of time certainly suffices, with the legal consent of the prince standing, for prescribing against a law not yet introduced, as is commonly taught. Indeed, although it has already been accepted, but afterward for a continuous ten years has passed into desuetude, it is probable that it no longer obliges. This is certain among all, if the custom has endured for 40 years (cf. n. 265). See VI, n. 664, where the obligation of physicians to warn the sick concerning confession is treated.
If the greater and sounder part of the people has not admitted the law; for although desuetude has not yet been prescribed, and although the first non-acceptors of the law sin by the very fact that they reject it (I, 97), nevertheless the others are not held to the law; for the prince is presumed not to wish to bind these to observing what has not been received by the greater part, and therefore becomes either plainly useless or too onerous to the lesser good part.
If the law is difficult of observance, or contrary to prevailing custom, and besides, the circumstances are such that if they had been foreknown by the legislator, he certainly would not have made the law: which is judged from the decision of prudent men. Likewise, if the people had petitioned for revocation, and the prince does not urge observation, he is probably presumed not to wish the law then to oblige; otherwise, if he urged it, or from prudence kept silence (cf. n. 264, 1).
- IT IS ASKED. Whether it is lawful for Bishops not to accept pontifical laws?
Resp. It is not lawful. For Bishops ought to obey the Roman Pontiff, not otherwise than the other faithful; indeed more than they, because they ought to furnish an example to them. Except, however, the case in which, on account of the circumstances of places, they judge that the law would be less accommodated to their Churches, or even harmful: in which case, they can and must set forth the reason to the Holy See. Meanwhile the Pontiff is deservedly judged not to wish to oblige before he has written back; but afterward all are bound to acquiesce in his definition (Benedict XIV, de Syn., l. 9, c. 8).