Article II: On the Promulgation of Law

St. Thomas, I-II, q. 90, a. 4.

226. Promulgation (afkondiging) is a public and authentic testimony concerning the existence of a law and its announcement (bekendmaking) made to the community. It is called:

1. authentic, that is, made solemnly or with a certain solemnity by legitimate authority, namely, by the legislator himself or his authentic mandate, so that from the solemnity it appears and cannot be doubted that the law has proceeded from him in whom the power of the society resides;

2. public, that is, so carried out that the law is seen to be directed to the knowledge of the community and that the community can easily come to knowledge of it.

227. Promulgation is necessary in order that law obligate. - For a rule, in order to direct and bind someone, must be applied and imposed upon him, which does not happen unless it becomes known to him (n. 203). But law is not a rule made for one or another person, but borne for a community. Therefore in order that it obligate, it must become known to the community. But it cannot become known to the community except from promulgation, by which it is proposed in a public mode and one proportioned to the community. Therefore law does not obligate unless it is promulgated. Otherwise law would be only in the superior regulating, but not in the subjects regulated.

Hence a) until it has been promulgated, one who would know from elsewhere that it had been established is not held by the law;

b) a doubtfully promulgated law does not obligate: for liberty is not bound except by promulgation certainly proved; in a case of doubt, namely, the doubt is sufficiently promulgated: whether there is a law; but the law itself is not sufficiently promulgated: that it is a law;

c) promulgation differs from the divulgation of law, which sometimes is called, and is as it were, promulgation "in second act," by which the law in fact comes to the knowledge of subjects. Promulgation is necessary so that law can be divulged: from the former objective obligation arises and in the external forum; but knowledge of the law is also necessary so that subjective obligation be present and in the forum of conscience: for no one can sin by violating an obligation which he does not know.

Nevertheless promulgation does not pertain to the essence of law; for 1) it is the application of a rule and measure to the thing ruled and measured, whence it supposes a rule or law already constituted; 2) without promulgation law, because it is the command of a superior, has force from his authority and is apt to direct and bind; whence obligation is not from promulgation as from a cause but as from a condition sine qua non. In the same way the application of fire to a combustible thing is the condition required for burning.

1. Haine notes, Theologia Moralis I, q. 34: "It is a required condition, such as is the proposal of the object by the intellect, in order that the object move the will to love of itself. Therefore, just as, in order that an object in second act move to love of itself, it is necessarily and indispensably required that it be proposed to the will by the intellect, since nothing is willed unless it is foreknown; nevertheless the reason or power of moving the will is not the proposal of the object but the goodness found in the object; so, in order that law in second act obligate to its observance, it is indeed indispensably required that it be proposed to subjects by promulgation; nevertheless the reason or power of obligating is not the promulgation or proposal itself, but the authority which the law has in itself, as it proceeds from the legislator as bearing the person of the republic." Nor does the principle of law stand in the way: Laws are established when they are promulgated, as the Code puts it, can. 8 § 1, from Justinian. For the sense is: through promulgation laws are definitively established and complete as obligating in second act, although they already are in first act. Besides, the intention of the Code is not to settle a scholastic question.

228. The mode of promulgation is not determined by the law of nature: any mode whatsoever suffices, whether it is done by public reading in an assembly, or by the voice of a herald in the street, or by insertion in a newspaper, or by affixing in a public place, even one which is frequented, chief, and central, provided that morally, in a human mode, the law can rather easily come to the knowledge of the community, if not simultaneously, at least successively. It is more than sufficient if notification is made to individuals in particular, as in the natural law which God has inserted into the minds of men to be known naturally.

229. Once promulgation has been made, law is perfect and complete, and of itself begins to obligate, unless its force is suspended for a time; hence:

a) if the legislator has determined some time at which obligation begins, the law does not obligate before then: for just as it depends upon him whether there is obligation or not, so too it depends upon him whether it begins sooner or later;

b) if he has not determined a time, in a community of small extent, for example, a diocese, it obligates morally at once, because the promulgation can be known at once;

c) but in a sufficiently extended society, for example, the universal Church, law obligates in various regions successively, according to the time which is morally necessary so that knowledge of the promulgation can commonly come to all in those regions by ordinary means; whence it begins to obligate at once in the place where promulgation was made and in neighboring places, but it does not at once obligate everywhere, because it cannot at once be known by all in the whole territory.

From this it follows that, if someone before that time knew the law by an extraordinary way, he would not be bound to observe it.