Article III: On the Formation of Ecclesiastical Law

329. Ecclesiastical laws can be formed just as other human laws can: either by an imperative act of the legislator requiring observance from the subjects, or by the observance or custom of subjects, to which the consent of the legislator is added.

In former times many ecclesiastical laws were introduced by custom, several of which have now been consigned to writing; but even today custom is able to introduce law, as we shall explain in q. 3, art. 7, but always with the consent of the legislator (can. 25); these laws are called customary right.

Now, however, laws are ordinarily constituted by an imperative act of the legislator; whence these laws are called constituted right, which ordinarily is written.

It belongs to the nature of constituted law: a) that the superior not make a law without the counsel of prudent persons; whence Pontiffs are accustomed to consult congregations, and bishops have the counsel of the chapter; indeed at least every ten years a diocesan synod is to be celebrated (can. 356, § 1), in which nevertheless the bishop alone is legislator, the others having a merely consultive vote (can. 362); b) that the intention of obligating be expressed in clear and brief words and in the language of the society to which it is directed, such as Latin in the Western Church; c) that it be proposed in writing, by which provision is better made for the perspicuity of the law. This can be done under various forms of decree, letter, code or collection, even response and sentence, although these two are more suited to interpreting a law already enacted than to introducing a new one; indeed under the form of an instruction, which nevertheless is rather a declarative norm and a directive rule to be observed, accessorily completing the law, in which nevertheless certain secondary points can be imposed by prescriptive ordination. Yet no determined form is to be observed by precept in the formation of laws.

330. Ecclesiastical laws take on various forms.

Today there are enumerated:

1. apostolic constitutions, which are issued in the name of the Roman Pontiff or proceed immediately from him, in the more solemn form of a Bull, and are concerned with graver business;

2. apostolic letters, which are issued under the form of a Bull or under the less solemn form of a Brief, for less grave business, especially of the order of governance or administration; letters are called encyclicals when they are directed to the bishops of the whole world, or to a notable part of them, e.g., at least of one or several nations;

3. decrees or general decrees, which the Roman Pontiff composes either in an ecumenical council or through the Roman congregations;

4. decretal letters or responses which take occasion from another's relation (to a consultation or petition), and rescripts by which another's petition is satisfied (can. 36 sq.);

5. consistorial allocutions, which are had by living voice in consistory: for the external forum they are authentic if they are reduced to writing and consigned by officials;

6. the Code of Law, or collection of the principal disciplinary laws of the Church, whose prescriptions are distinguished not by articles as in civil law, but by canons;

7. decrees of particular councils;

8. statutes, by which rather are designated laws enacted by an inferior power, e.g., episcopal or diocesan statutes, or ordinances of the internal governance of moral persons, e.g., capitular or religious statutes.

331. The mode of promulgating laws, just as of forming them, was variously used by the Pontiffs.

a) During the first twelve centuries, they promulgated their constitutions by sending them into the provinces, through clerics of most approved faith, either to individual bishops, or to metropolitans or patriarchs, who took care that they be transmitted to the bishops;

b) at the beginning of the thirteenth century, they began to promulgate authentic collections of canon law by sending them with a Bull to the more celebrated academies: thus Innocent III, in the year 1210, promulgated the collection of his decretals by letters directed to the University of Bologna;

c) in the course of the same century, they ordered certain Bulls to be promulgated by affixing them in the place of their residence, especially at Rome (e.g., at the doors of the Lateran Church; the basilica of St. Peter in the Vatican, and the Apostolic Chancery, or in the square of the Campo de' Fiori), with this clause, that such promulgation would suffice for the law to obtain its whole force: thus Martin IV in the year 1281 issued a Bull against Michael Palaeologus, and Boniface VIII used the same mode against Philip the Fair.

Such promulgation made in a central place such as Rome suffices for the law to have the force of obligating: for it is the chief city of the whole world, whose communication with the whole world is immense, to which almost all nations come together, in which not only kings have their legates but almost all prelates have their procurators, who can render them more certain concerning new laws; whence a new law promulgated there is very easily divulged.

This mode of promulgation thereafter was generally retained by the Supreme Pontiffs, although it was never the only one: for certain things were accustomed to be promulgated by transmission to nuncios, metropolitans, bishops, etc., such as encyclicals and decrees issued by congregations; or even by promulgation in individual dioceses or even parishes, as was done for the decree of Trent concerning clandestine marriages and was usually done for penal law, invalidating law, law removing jurisdiction, or for constitutions which regard a part of the Church.

d) But now Pius X decreed (constitution of September 29, 1908) that an official commentary be issued (Acta Apostolicae Sedis), in which he willed pontifical constitutions, laws, decrees, and other decisions of the Roman Pontiff and of the Sacred Congregations and Offices to be inserted and published to the public, and in this way promulgated, whenever there is need of promulgation and no other provision has been made by the Holy See. The Code ratified this, can. 9: "Laws enacted by the Apostolic See are promulgated by publication (that is, not by insertion alone, but by publication or some making public) in the official commentary of the Acta Apostolicae Sedis, unless in particular cases another mode of promulgating has been prescribed."

332. When a promulgated law begins to obligate. - Once the promulgation of a general law has been made at Rome, the law obligates at the time designated by it; but if none is designated (as formerly often took place), some said that it obligates at once, that is, on the following day; others, better, gradually after a time sufficient for divulgation, more or less according to the distance of places; others finally, only after two months, and indeed everywhere, even in the place of promulgation: for the time in which the law can arrive in a human way at the ears of subjects is to be assessed by the judgment of the prudent, which formerly in Roman law was assessed at two months; therefore one must stand by it where the time is not determined. But this assessment is not demonstrated to be applicable to the laws of the Church; then the Roman Curia declared nearby persons guilty of transgressing the law before two months had elapsed; and on the other hand there are several regions to which, after two months, knowledge of the law could not always come; finally, that assessment does not seem capable of being made for all times, even those in which the means of divulgation become much easier. Whence the second opinion seems true, the last was held probable by many, and the first is altogether improbable.

Now, however, the time has already been designated universally, and canon 9 of the Code has force: "Laws enacted by the Apostolic See are promulgated... and exercise their force only after three months have been completed ('as they are computed in the calendar, with the first day counted,' can. 34, § 3) from the day which is appended to the issue of the Acta, unless from the nature of the matter they bind immediately, or in the law itself a shorter or longer vacatio has been specially and expressly established."

From the nature of the matter, laws immediately bind which are concerned with the matter of faith and morals, condemn books and place them in the Index, or declare those things which suffer no delay and must be applied immediately.

333. Concerning the promulgation of particular laws, such as episcopal laws, the common law has nothing; whence it is left to be determined by the judgment of the legislator. They can be promulgated by public reading in the cathedral church, by the voice of a crier in the city square, by affixing in a public place designated for this, by insertion in the diocesan paper, or even by public decision in a synod (can. 335, § 2 and 362). They obligate at once, unless otherwise declared. The same almost holds for the laws of particular councils (can. 291, § 1).

334. For the validity or obligatory force of ecclesiastical law, per se there is not required:

A. Acceptance of subjects properly so called approbative, or acceptance of right, that is, consent to the observance of the enacted law, or the will to submit oneself to it. For the ecclesiastical legislator has power conceded by Christ Himself, not by the community or subjects, to be exercised independently of their consent; and therefore he can, and generally wills to, command independently of such consent (Council of Florence; Trent, sess. 14, c. 7; Vatican, c. 3). Hence there is not required:

1. acceptance of the people; nor 2) for pontifical law, acceptance of the bishops, or for episcopal law, acceptance of priests of the second order: yet if bishops think a pontifical law harmful to their subjects, they can, indeed must, render the Pontiff more certain of this and beseech him that he derogate from it; during the time of supplication, the obligation is probably suspended by epikeia until the Pontiff has judged definitively; nor 3) a fortiori is the consent of secular power required (placet). Cf. Vatican Council, c. 3; encyclical Quanta cura, 1864; Syllabus, prop. 28, 41, 49; constitution Apostolicae Sedis, tit. I, n. 7 and 8.

B. A fortiori there is not required executive acceptance and improperly called acceptance of fact, in order to attribute validity to the law, or the very actual observance of the law and its deduction into use.

Nevertheless, it can be necessary for conserving the force of the law, not directly but indirectly. For if the superior cannot obtain the fulfillment of the law from the greater or sounder part of the community, it can be fitting that he not urge the observance of the law: for by urging it he can be an occasion of ruin to subjects without fruit. In this case the obligation does not fail directly from non-acceptance by the people, but indirectly from the tacit or presumed consent of the legislator, who is judged not to will the ruin of souls if he does not urge the law. But when such a law is judged revoked cannot be determined generally, but is left to the judgment of the prudent.

335. Observation.

Definitions of the Church regarding natural and divine right, and a simple interpretation of ecclesiastical right in force, immediately obligate once they are known, because they do not need promulgation since they are not new laws.