Chapter I. The Nature of Law

A law in general is a rule of conduct, but the term needs to be defined more exactly in order to mark it off from precepts and counsels, A law, then, in the strict sense of the word, is, according to St Thomas, an ordinance of the practical reason for the common good, promulgated by him who has care of a society.¹

It is said to be an ordinance of the practical reason, for a law orders human actions with a view to a certain end, but to order and select proper means toward an end belongs to the reason; and since the ordering in question has reference to practice and is imposed by authority, it is attributed to the practical reason. Law, then, begets an obligation in the subject, and in this differs from a counsel.

For the common good indicates the end of all good laws.

By him who has care suggests the source of law which can only be one who has authority over the whole community. Regulations made by subordinate authorities are called in English by-laws, in ecclesiastical language, statutes.

Of the society—These words imply that the subject of law is not a single person or a family; a law is made for a community more or less numerous.

Promulgated—Promulgation is the publication of the law by legitimate authority with a view to imposing an obligation. Some sort of promulgation is required in order that subjects may know of the existence of the law and the time when it begins to bind. In English legislation the time when a law will begin to take effect is often set down in the law itself; otherwise it begins to oblige when it receives the royal assent, by which act it is also promulgated.

There used to be a controversy as to what sort of promulgation is necessary in order that ecclesiastical laws may be binding. Many canonists maintained that in this matter canon law followed the civil law, which required that a new ordinance should be promulgated in the different provinces of the Empire, and should begin to bind after a period of two months, In recent times the opinion has become prevalent that authoritative publication in Rome is, by the very fact, promulgation for the whole Church. This is certainly sufficient if the Supreme Pontiff makes known his intention to bind the whole Church by mere publication in Rome, as Leo XIII seems to have done in his legislation about forbidden books.² Not unfrequently there is a special clause in ecclesiastical laws which defines the mode of promulgation, as in the decree Tametsi of the Council of Trent (sess. 24, De Ref. Matrim., c. 1), in the Constitution of Clement XIV, Dominus ac Redemptor, July 21, 1773, and in the Constitution of Leo XIII, Romanos Pontifices, May 8, 1881. Sometimes a new law is sent to the Bishops, whose duty it is to see to the execution of the Pontiff’s will.

The new Code of Canon Law prescribes (Can. 9) that laws made by the Apostolic See are promulgated by their publication in the official Acta Apostolicae Sedis, unless in particular cases some other mode of promulgation is prescribed; and they only begin to have force after the elapse of three months from the date of the number of the Acta Apostolicae Sedis in which they are published, unless from the nature of the matter they bind immediately or a shorter or longer term is specially and expressly laid down in the law itself.

The Fathers of a Plenary or Provincial Council themselves determine the mode and time of promulgation of the decrees of the Council after revision by the Sacred Congregation of the Council (Can. 291); a Bishop determines the mode of promulgation of his own laws in or out of Synod (Can. 335, sec. 2).

¹ St Thomas, 1-2, q. 90, a. 4.

² Index librorum prohibitorum, 1900.

From what has been already said it will be clear how a law differs from a precept. A law is a regulation made by a public authority for the common good, and directly affects a definite territory, and indirectly those who live therein. It is stable and permanent, as is the society for whose good it is made. A precept, on the other hand, is imposed also by private authority for the good of the individual, and directly affects the person—haeret ossibus. Regularly a precept is limited in time and expires with the death or removal from office of him who gave it.

Laws are divine or human.

Divine law is either natural or positive. The natural law is promulgated in the rational nature of man, and is a participation in human reason of the eternal law of God, which bids us observe right order, and forbids its disturbance. Positive divine law is made known by revelation.

Human law is ecclesiastical when made by the authority of the Church; municipal or civil when it is the ordinance of the civil ruler. The term civil is frequently restricted to the Roman civil law.

Other divisions of law and their application will be clear from the chapters which follow. 1.