Case 5. Non-acceptance of a Law

A certain ecclesiastical law was duly promulgated at Rome, and knowledge of it was spread through the Catholic world by periodicals. The bishops of a certain region, however, did not promulgate it in their dioceses, nor did they urge its execution; it was not commonly observed, and indeed some of its prescriptions were acted against in good or bad faith. Titius, a young man of excellent character who cultivates theological studies, conceives anxieties and difficulties from this because the doctrine handed down by theologians concerning laws does not seem to agree with practice. Hence he has recourse to his confessor and asks for the solution of his difficulties. Therefore it is asked:

1. Is promulgation required in order that a new law may bind subjects, and what kind?

2. Is acceptance by the people required in order that a law may bind?

3. Does a new law abrogate contrary customs?

4. What is to be said concerning the case?

1. For the answer to this question, see p. 74.

2. Must a law be accepted by the people in order to be binding?

The question concerns ecclesiastical law and the answer must be in the negative, for the obligation of a law comes from the will of the lawgiver, not from the subjects. In spite of this, however, the fact that a law is not put into execution and is not observed may incidentally take away or suspend its binding force. This may happen in various ways. The bishops, whose duty it is to see to the observance of ecclesiastical laws, may know of serious difficulties which stand in the way of the observance of some particular law, and they may have reported in this sense to the Holy See. If in such cases the Holy See insists on the observance of the law, the bishops should enforce it; but if the Holy See says nothing, the law may be considered as suspended for the present. Or it may be that on account of the difficulties in the way the observance of the law was not insisted on; in such a case the law will not bind practically, with the tacit consent of the legislator, or, after a certain time, on account of the prevalence of a contrary custom.

3. Does a new law abolish contrary customs?

A new ecclesiastical law abolishes general customs to the contrary, but it does not abolish particular customs, unless the law contains a clause specially revoking them.¹

1 C. 1, de Constit., in 6; St. Alphonsus, lib. i, n. 109.

4. The case. Titius, a theological student, is distressed because he thinks that practice does not agree with the theory put down in the books about the binding force of a law. There a law is said to bind independently of its being received or not by the people. However, he notices that a certain law was duly promulgated in Rome, and it became known by being published in the papers. And yet the bishops in a certain country did not publish it in their dioceses, nor urge compliance with it, nor was it commonly observed; on the contrary some of its provisions were infringed. So Titius goes to his confessor and asks him for an explanation. The confessor will doubtless tell Titius that either the law in question was never meant for the dioceses which he has in view, or that the bishops have referred the matter to Rome, or that the difficulties in the way of observance are so great that the bishops think it best to say nothing about the law for the present. In any case Titius need not distress himself about the matter, which chiefly concerns the bishops; let him be ready to observe the law if and when it is enforced, and he may in the meantime do as others do, for we are here considering a merely positive law and its binding force.