Summa Theologiae Moralis, vol. I: De Principiis

On the Formation of Human Law.

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

1. Custom by the nature of the thing is a legitimate source of law. For it is conformed to reason that customs introduce law : for those things which are voluntarily observed by the members of society and are born of social evolution, are to be regarded (unless something prevents) as accommodated to the disposition of the subjects and conformed to the common good ; whence they cannot not be sanctioned by a prudent superior. Hence custom, which is usually defined as « a statute law introduced by the long-standing customs of the community with some consent of the legislator », was generally admitted in Roman Law ; — but not so in present-day Civil Law, neither for introducing, nor for abrogating, nor for extending or restricting a law ; unless exceptionally, if it is expressly indicated in the law, as happens in the matter of contracts and negotiation.

2. Written law can be issued in various and any forms, of decree, letter, codex or collection ; also of response and sentence, although these two are more suited to interpreting a law already enacted than to introducing a new one. Likewise by various procedures for various times among various peoples it is formed ; today the accepted procedure is the following : it is proposed by ministers of state or by members of the legislative body, in the body it is publicly discussed and accepted by vote, sanctioned by the supreme authority¹.

It is fitting to the nature of constituted law : a) that the superior not enact 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 : for it could indeed be handed down by word of mouth, but by writing better provision is made for the clearness and integrity of the law. All these however are not strictly required in order that the law oblige.

274. Promulgation has been done in various ways at various times and among various nations. In Roman Law, from the year 538, under the emperor Justinian, it was to be done in each province or metropolitan city.

Today, in civilized regions, it is usually done by the act of the king, or of the supreme magistrate of the republic, by which he testifies to the law having been enacted and makes it public right by denouncement in the official gazette ; it begins however to oblige after the time which has been appointed.

Thus in Belgium, according to the law of 28 Feb. 1845, art. 2, confirmed by the law of 18 April 1898 modified 28 Dec. 1909, art. 4 (conformably to Const. Belg. art. 129), it is done by authentic testimony of the existence of the law made by the king and public insertion by him enjoined in the official State gazette : le Moniteur ; and the laws oblige throughout the whole kingdom, on the 10th day after the day of publication, unless however otherwise appointed in the law, or unless it was accidentally impossible for citizens to know it, e.g. because of war, great flooding, etc., or for subjects who are abroad : for the law clearly supposes the possibility of their knowing it (art. 1 of the law of 2 Aug. 1822). — In France, by decree of 5 Nov. 1870, the law obliges one full day having revolved after the official gazette has arrived at the capital of each district. — In Italy the laws oblige on the 15th day from the day of publication.

275. Thesis. For the value or obligating force of human law, of itself the approbative acceptance of the subjects is not required, or acceptance of law, i.e. consent to the observance of the law enacted.

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

2. If acceptance were required, this would be either from a defect of will in the legislator, or from a defect of power. Not the first : for if he enacts the law with preceptive words and urges it with penalties, it is a clear sign that he wishes to oblige to it ; otherwise 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 the subjects, otherwise an efficacious direction of society would be impossible ; and otherwise it would not be a true power of commanding and prescribing, but a mere faculty of giving and proposing counsel, by which the common good cannot sufficiently be procured.

3. Whence Alexander VII condemned prop. (28) : « A people does not sin even if without any cause it does not receive a law promulgated by the prince » (cf. Syll. prop. 63).

Accidentally however acceptance is necessary, if the legislator is unwilling otherwise to oblige, 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 the acceptance is not of a law already constituted, but concurs to constituting it.

276. A fortiori for the value to be attributed to the law the executive acceptance of fact, or the very observance of the law, is not required.

It can however be necessary for preserving the force of law, not directly, but indirectly. For if the superior is not able to obtain the fulfillment of the law from the greater or healthier part of the community, it can be fitting that he not urge the observance of the law : for by urging it he could be an occasion of ruin to the subjects without fruit. In which case the obligation does not fail directly from the non-acceptance of 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 wish the ruin of souls. But when such a law is considered to be revoked cannot be determined generally, but is left to the judgment of the prudent.

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