Article IV: On the Formation of Human Law

273. Human laws can be formed either by the imperative act of the legislator requiring observance from subjects: these are constituted or legal right, which ordinarily is written; or by the observance of subjects to which the consent of the legislator is added: these are customary right.

1. Custom from the nature of the thing is a legitimate source of right. Namely, it is conformable to reason that manners introduce law: for those things which are spontaneously observed by the members of society and are born from social development are to be held (unless something stands in the way) as accommodated to the character of the subjects and conformable to the common good; whence they cannot fail to be sanctioned by a prudent superior. Hence custom, which is usually defined as "legal right introduced by long-standing manners of the community with some consent of the legislator," was generally admitted in Roman Law; but not so in modern civil law, either for introducing, abrogating, extending, or restricting law, unless exceptionally, if it is expressly indicated in the law, as happens in the matter of contracts and commerce.

2. Written law can be issued in various forms, and by whatever forms of decree, letter, code, or collection; also of response and sentence, although these two are more fitting for interpreting a law already borne than for introducing a new one. Likewise it is formed by a various process for various times among various peoples; today the received process is the following: it is proposed by ministers of the state or by members of the legislative assembly, is publicly discussed in the assembly and accepted by vote, and is sanctioned by the supreme power.

1. Cf. Belgian Constitution, a. 27, 39, 69.

But it befits the nature of constituted law: a) that the superior not bear a law without the counsel of the prudent; b) that it be expressed in clear and brief words in the language of the society to which it is directed; c) that it be proposed in writing: indeed it could be handed down orally, yet by writing better provision is made for the perspicuity and sincerity of the law. Nevertheless all these things are not strictly required that a law obligate.

274. Promulgation has been made in various modes at various times and among various nations. In Roman Law, from the year 538, under the emperor Justinian, it had to be made in individual provinces or metropolitan cities.

Today, in cultivated regions, it is usually made by an act of the king or supreme magistrate of the republic, by which he testifies concerning the law established and the law itself becomes public right by an announcement had in the official newspaper; but it begins to obligate after the time which has been established.

Thus in Belgium, according to the law of February 28, 1845, art. 2, confirmed by the law of April 18, 1898, modified December 28, 1909, art. 4 (conformably to the Belgian Constitution, art. 129), it is done by an authentic testimony made by the king concerning the existence of the law and by public insertion commanded by him in the official newspaper of the State, Le Moniteur; and laws obligate in the whole kingdom on the tenth day after the day of publication, unless otherwise established in the law, or unless accidentally it was impossible for citizens to know it, for example, on account of war, a great inundation, etc., or for subjects who are outside the kingdom: for law openly supposes the possibility of knowing it (art. 1, law of August 2, 1822). In France, from the decree of November 5, 1870, law obligates after one full day has elapsed after the official journal has reached the capital city of each district. In Italy laws obligate on the fifteenth day from the day of publication.

275. Thesis. For the value or obligating force of human law, the approving acceptance of subjects, or acceptance of right, that is, consent to observance of the law borne, is not required per se.

It is proved: 1) The Apostle, Rom. XIII, 2, says without restriction or exception: He who resists power resists the ordinance of God; but he resists power who does not accept the law borne by it.

2. If acceptance were required, this would be either from defect of will in the legislator or from defect of power. Not the first: for if he bears a law in preceptive words and urges it with penalties, it is an open sign that he wills to obligate to it; moreover the common good can require that he break the resistances of subjects. Not the second, because power in its exercise is not restricted at the nod of subjects; otherwise the efficacious direction of society would be impossible; and moreover then it would not be a power of commanding and prescribing in the true sense, but a mere faculty of giving and proposing counsel, by which the common good cannot be sufficiently procured.

3. Whence Alexander VII condemned the proposition (28): "The people do not sin even if without any cause they do not receive a law promulgated by the prince" (cf. Syllabus, prop. 63).

Nevertheless per accidens acceptance is necessary, if the legislator does not will to obligate otherwise, or if that right is reserved to the people in the law (as in Switzerland for certain laws there is a referendum to the people); but then acceptance is not of a law already constituted, but concurs toward constituting it.

276. A fortiori, executive acceptance of fact, or the observance itself of the law, is not required for giving value to a law.

Nevertheless it can be necessary for conserving the force of law, not directly, but indirectly. For if a superior is unable to obtain fulfillment of the law from the greater or saner part of the community, it can be fitting that he not urge observance of the law; for by urging he could be an occasion of ruin to subjects without fruit. In which 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, if he does not urge the law, not to will the ruin of souls. But when such a law is judged revoked cannot be determined generally, but is left to the judgment of the prudent.

By difference from Roman Law, present-day civil law, because it denies all force to custom, does not admit that after promulgation a law is suspended by recourse to the legislator, nor that it ceases by non-reception or by not being brought into use; whence the consent of the legislator cannot be supposed.