Question Fifth. On the Promulgation and Acceptance of Law.

153. The notion and necessity of promulgation. 1. Promulgation is defined as the external proposal of the law, solemnly made by the legislator to the community.

a. Promulgation must be made by the legislator, because law must have from the legislator all those things which are required for fully constituting it. It must be solemn, or made by a public act at the command of the legislator (by the voice of a herald, by affixing in a public place), so that it may be certain to subjects that the law is promulgated.

b. The promulgation of a law differs from the dissemination of the same law, by which, once promulgation has already been made, it is spread among subjects in different places, so that it may come to the knowledge of all. It is clear that dissemination is not necessary for the validity of the law. It also differs from notice or knowledge of the law: for notice of a law not yet promulgated does not introduce obligation; but once promulgation has been made, the law obliges (in first act) even those who still are ignorant of the law. Therefore he who has private notice of a law not yet promulgated does not sin if he acts against the law; but he who acts against a law already promulgated sins materially, even if he is ignorant of it.

c. Bishops are bound to obtain for themselves the authentic text of a promulgated law and to communicate it to their subjects and, if there is need, to explain it.

2. Promulgation is necessary for a law to obtain the force of obliging: for law cannot oblige subjects unless the will of the legislator to oblige the subjects has been intimated to them; but it is intimated through promulgation; wherefore law before promulgation does not oblige.

Those who affirm that promulgation is not only a necessary condition for inducing the obligation of a law, but a constitutive element of the law itself, argue thus: law formally is a public rule of morals issued by the prince as he is a public person; but a rule is constituted public by publication; therefore law is formally constituted law by publication.

154. The manner of promulgation. By the law of nature that manner of promulgation is required and suffices by which subjects can know the law as promulgated by the prince. Since diverse modes exist for obtaining this end, it belongs to the legislator to choose that one which seems suitable to him for the end; but the mode chosen by the legislator must be considered entirely sufficient.

a. Now for several centuries the Roman pontiffs have considered that promulgation sufficient by which ecclesiastical laws are affixed in public places at Rome, nor is it necessary that they be promulgated in individual provinces or dioceses, unless in a particular case the legislator himself has established otherwise. But from the beginning of the year 1909, only those ecclesiastical laws, decrees, and acts of the holy see are judged duly promulgated which have been inserted in the official commentary Acta Apostolicae Sedis and published to the public.¹

By the will of the Council of Trent, the law concerning the clandestinity of marriages had to be promulgated in individual parishes in order to introduce obligation. Leo XIII willed that the constitution Romanos pontifices (8 May 1881) should not be obligatory except after promulgation made in England. Pius X willed that the decree Ne temere (2 August 1907) concerning betrothals and marriage should be promulgated through its transmission to ordinaries.

b. Episcopal laws are judged sufficiently promulgated if they are published in the episcopal city (because, for example, they are publicly read in the cathedral church or affixed to its doors), or if they are inserted in the diocesan paper.

c. The reason why several authors, and those not undistinguished, have thought that pontifical laws must be promulgated in individual provinces is this: Roman law establishes that new laws must be promulgated not only in the principal city, but also in individual provinces; but pontifical law has issued no particular statute concerning the manner of promulgation. Now from the canon commonly received in the doctrine of authors, where ecclesiastical law establishes nothing specifically about some matter, it is judged to accept the dispositions of Roman law. - But from the declaration of the Roman pontiffs this disposition of civil law is not to be accepted. Thus also both pontifical constitutions, Apostolicae sedis (12 October 1869) and Officiorum ac munerum (25 January 1897), by the will of the supreme pontiff obliged all the faithful after promulgation made at Rome,² and indeed by the explicit will of Pius X laws and decrees have the force of obliging by the fact that they have been published in the official commentary. From this doctrine it follows that the obligation of ecclesiastical laws cannot be impeded by the placetum regium, since their promulgation made at Rome suffices for them to obtain the force of obliging everywhere.

d. In fact, ecclesiastical laws promulgated at Rome are sometimes communicated, in order that knowledge of them may be disseminated, through the apostolic nuncio or through the archbishop to the bishops, by whom they are then made known throughout the diocese. To introduce obligation it is not necessary that bishops promulgate ecclesiastical laws, e.g. decrees and decisions of the Roman congregations, in their dioceses: for as soon as certain knowledge of some decree or decision, e.g. through trustworthy public journals, has come to us, we are obliged to observe it.

¹ Constitution Promulgandi, 29 September 1908.

² Cf. Ballerini-Palmieri I. Appendix. II. De promulgatione legis pontificiae.

155. When law begins to oblige. Once promulgation has been made, a law to which no term has been prefixed for the beginning of obligation obliges all to whom knowledge of it comes; but after a two-month period has elapsed, this knowledge is judged to have come to all: for, in the judgment of prudent men, in the space of two months a law duly promulgated can be known by all. But if a term has been prefixed to the law from which it begins to have the force of obliging, just as before that term it obliges no one, so after the term has elapsed everyone is presumed to know the law.

a. Not only the laws of inferior prelates, but also pontifical laws of themselves oblige all immediately after promulgation, unless something else has been established by the legislator himself. Nevertheless, during the two-month period after promulgation, before it has yet elapsed, as regards a penal and invalidating law, in the external forum at least outside the Roman curia an excuse of ignorance is more easily admitted; but once the two-month period has elapsed, knowledge of the law is presumed.¹

b. The probable opinion of St. Alphonsus is to be noted, by force of which pontifical (disciplinary) laws, during the two-month period after promulgation, before it has yet elapsed, oblige no one either in the external forum or in the internal forum, even if he has knowledge of the law. This opinion is strengthened by this argument: where a disposition of canon law is lacking, one must stand by Roman law; but in Roman law laws began to oblige two months after promulgation.² Wherefore it is lawful to wait for two months until the disciplinary decrees of the holy see are mandated for execution.

c. Nevertheless ecclesiastical laws which contain definitions of faith or declare divine law immediately oblige in conscience all who have received knowledge of the law in any way whatsoever: for laws of this kind, since they have already been promulgated, need, for inducing obligation, not promulgation, but knowledge alone.

¹ Cf. Wernz, I. n. 101.

² St. Alphonsus n. 96. q. 2.

156. On the acceptance of law.

A law is said to be accepted by the fact that it begins to be observed by subjects; a promulgated and known law which is not observed by subjects is said not to be accepted.

1. The acceptance of the people is not required for a law to obtain the force of obliging: for a superior has the power and will of obliging subjects independently of the acceptance of the people, nor could true legislative power consist in the prince, if the value of laws depended upon the acceptance of the people.

a. This is so true concerning civil law that the contrary proposition was condemned;¹ but to affirm the contrary concerning ecclesiastical law would even savor of heresy: for it is certain by faith that the supreme pontiff has received legislative power, and indeed one altogether independent of the people, immediately from Christ.

b. Nevertheless it can happen that somewhere a law issued is not received by right, namely if a contrary custom is in force there, which is not removed through a derogatory clause added to the law.

2. If a law duly promulgated is not observed, a contrary custom can arise immediately. In this case those who in the beginning transgress the law generally sin; but when the contrary custom has been legitimately prescribed, subjects who do not observe the law no longer sin. It is clear that the effect of this contrary custom is the same as if the law had not been accepted.

3. If some disciplinary law seems to the people too difficult or less suitable to the circumstances of things, an appeal can be made to the legislator; meanwhile, however, the obligation of the law is suspended from the presumed consent of the legislator. But if thereafter the legislator does not urge the obligation, he is judged to revoke it.

a. Wherefore bishops of themselves are bound to accept pontifical laws and to promulgate them to their subjects; yet if they have judged some law less suitable or even harmful to their diocese, they can and must set forth their reasons to the holy see; meanwhile the supreme pontiff is judged not to wish to oblige; afterward, however, obedience must be given to his definition. But if nevertheless the law certainly seems harmful to his diocese to the bishop, he is not bound to urge its observance.

b. The common opinion of canonists that a law not received does not oblige² admits a twofold true sense: a. a law not received does not oblige when it has been abrogated by legitimate custom; b. a law not received because of excessive difficulty does not oblige.

¹ "The people does not sin, even if without any cause it does not receive a law promulgated by the prince." Proposition 28 condemned by Alexander VII.

² In c. Treugas 1. De treuga et pace (I. 34).