Summa Theologiae Moralis, vol. I: De Principiis

On the Formation of Ecclesiastical Law.

329. Ecclesiastical laws can be formed like other human ones : either by an imperative act of the legislator demanding observance from the subjects, or by the observance or custom of the subjects to which the consent of the legislator is added.

Formerly many ecclesiastical laws were introduced by custom, of which more were already committed to writing ; but even today custom has force to introduce law, as will be explained in q. 3, art. 7, but always with the consent of the legislator (can. 25) ; these laws are called customary law.

Now however laws are ordinarily constituted by the imperative act of the legislator ; whence these laws are called constituted law, which ordinarily is written.

It is fitting to the nature of constituted law a) that the superior not enact a law without the counsel of the prudent, whence Pontiffs are accustomed to consult congregations, and bishops have the counsel of the chapter, indeed a diocesan synod is to be celebrated at least every ten years (can. 356, § 1), in which nevertheless the bishop alone is the legislator, the others having a merely consultative vote (can. 362) ; — b) that it be expressed in clear and brief words by him who intends to oblige and in the language of the society to which it is directed, such as is Latin in the Western Church ; — c) that it be proposed in writing by which better provision is made for the clearness of the law ; which can be done under various 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, indeed under the form of instruction, which is however rather a declaratory norm and a directive rule to be observed as an accessory completing the law, in which nevertheless some secondary points can be imposed by prescriptive ordinance. No determined form however is to be observed of precept in the formation of laws.

330. Ecclesiastical laws take various forms. Today are enumerated

1. apostolic constitutions which are issued in the name of the Roman Pontiff or proceed immediately from him, in the more solemn form of a Bull, and concern graver matters ;

2. apostolic letters which are issued under the form of a Bull or under the less solemn form of a Brief, for less grave matters, especially of the governing or administrative order ; letters are called encyclical when they are directed to the bishops of the whole world, or to a notable part of them, e.g. at least of one or several nations ;

3. decrees or general decrees which the Roman Pontiff either in an ecumenical council or through the Roman congregations prepares ;

4. decretal epistles or responses which take their occasion from another's relation (to a consultation or petition), and rescripts by which another's petition is satisfied (can. 36 sq.) ;

5. consistorial allocutions which are given by living voice in consistory : for the external forum they are authentic, if they are reduced to writing and consigned by officials ;

6. code of Law or collection of the principles of the disciplinary laws of the Church, whose prescriptions are distinguished not by articles as civil law, but by canons ;

7. decrees of particular councils ;

8. statutes, by which are rather designated laws enacted by an inferior power, e.g. episcopal or dioces statutes, or ordinances of the internal government of moral persons, e.g. chapter or religious statutes.

331. The manner of promulgating laws, as of forming them, has been various as employed by the Pontiffs :

a) for the first 12 centuries, they promulgated their constitutions, sending them into the provinces, through clerics of proved fidelity, either to individual bishops, or to metropolitans or patriarchs, who took care to transmit the same to the bishops ;

b) at the beginning of the 13th century, they began to promulgate authentic collections of canon law, sending them with a Bull to the more celebrated academies : so Innocent III, in the year 1210, promulgated his collection of decretals by letters directed to the University of Bologna ; c) as that century was waning, they ordered certain Bulls to be promulgated by affixion in the place of their residence, at Rome especially (e.g. on the doors of the Church of the Lateran ; of St. Peter's Basilica in the Vatican and of the Apostolic Chancery, or on the field of Flora), with this clause that such promulgation sufficed for the law to obtain its full force : so Martin IV, in 1281, issued a Bull against Michael Palaeologus, and in the same way Boniface VIII was used against Philip the Fair.

Such promulgation done in a central place such as Rome suffices for the law to have the force of obliging : for the city is the chief of the whole world which has immense communication with the whole world, to which almost all nations come together, in which not only kings have their legates but almost all prelates have their procurators who can make them aware of new laws ; whence a new law promulgated there is very easily divulged.

That manner of promulgation was thereafter generally retained by the Supreme Pontiffs, without however ever being the only one : for some were accustomed to be promulgated by transmission to nuncios, metropolitans, bishops, etc., as encyclicals and decrees issued by congregations ; or also by promulgation in individual dioceses or even parishes, as was done for the decree of Trent concerning clandestine marriages and was wont to be done for a penal, irritant law, removing jurisdiction, or for constitutions which regard a part of the Church.

d) Now however Pius X ordained (Const. 29 Sept. 1908) that an official commentary be published (Acta Apostolicae Sedis), in which he wished inserted and issued to the public and by this means promulgated pontifical constitutions, laws, decrees and other enactments of the Roman Pontiff and of the Sacred Congregations and Offices, whenever promulgation is needed, and otherwise it has not been provided by the Holy See. Which the Code ratified, can. 9 : « Laws enacted by the Apostolic See are promulgated by publication (i.e. not only insertion but publication or some bringing out to the public) in the official commentary of the Acta Apostolicae Sedis, unless in particular cases another manner of promulgation has been prescribed ».

332. When does a promulgated law begin to oblige. — By the promulgation of a general law done at Rome, the law obliges at the time designated by it, which if none is designated (as formerly often had place), some have said it obliges immediately i.e. the next day ; — better others [say] gradually after a time sufficient for divulgation, more or less according to the distance of places ; — others finally not until after two months and indeed everywhere even in the place of promulgation : for the time in which the law can in a human manner come to the ears of the subjects is to be fixed by the judgment of the prudent, which formerly was fixed in Roman law at two months ; therefore it is to be adhered to where time is not determined. But this fixing is not shown to be applicable to the laws of the Church ; then the Roman Curia declared guilty of transgression of the law those neighbors before the lapse of two months ; and on the other hand there are many regions to which after two months the knowledge of the law could not always come ; finally that fixing does not seem able to be made for all times even those in which the means of divulgation will become much easier. Whence the 2nd opinion seems true, the last was held probable by many, the first is altogether improbable.

Now however a time has already universally been designated, and can. 9 of the Code holds : « Laws enacted by the Apostolic See are promulgated... and exert their force only after the completion of three months (« as they are computed in the calendar from the first day » can. 34, § 3) from the day which is attached to the number of the Acta, unless by the nature of the thing they bind immediately or in the law itself a shorter or longer vacatio has been specially and expressly established ».

By the nature of the thing laws bind immediately which concern matters of faith and morals, damn books and place them in the Index, or declare those things which suffer no delay and are to be applied at once.

333. On the promulgation of particular laws, such as are episcopal [laws], the common law has nothing, whence they are left to be determined by the judgment of the legislator. They can be promulgated by public reading in the cathedral church, by the voice of a herald in the public square of the city, by affixion in a public place designated for this, by insertion in the diocesan gazette, or also by public decision in synod (can. 335, § 2 and 362). They oblige at once, unless otherwise declared. — The same nearly holds for the laws of particular councils (can. 291, § 1).

334. For the value or obligating force of ecclesiastical law of itself is not required :

A. Acceptance of the subjects properly so called approbative, or acceptance of law, i.e. consent to the observance of the law enacted or the will of submitting oneself to it. For the ecclesiastical legislator has the power granted by Christ himself, not by the community or subjects, to be exercised independently of their consent ; and therefore he can and generally wishes to prescribe independently of such consent (C. Flor. ; Trid. sess. 14, c. 7 ; Vat., c. 3). Hence is not required : 1) acceptance by the people ; nor 2) for a pontifical law acceptance by the bishops, or for an episcopal law acceptance by priests of the second order : the bishops however, if a pontifical law is harmful for their own subjects, can and ought to make the Pontiff aware of this and to beseech him to derogate from it, at which time of supplication the obligation is probably suspended by epikeia, until the Pontiff has definitively judged ; nor 3) a fortiori is required the consent of the secular power (placet). Cf. C. Vat. c. 3 ; enc. Quanta cura 1864 ; Syll. prop. 28, 41, 49 ; const. Apost. Sedis, tit. I, n. 7 and 8.

B. A fortiori is not required executive and improperly so called acceptance of fact, for the value to be attributed to the law, or the very actual observance of the law and its being brought into use.

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 can 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 considered not to wish the ruin of souls if he does not urge the law. But when such a law is considered to be revoked cannot be determined generally, but is left to the judgment of the prudent.

335. Remark. — Definitions of the Church regarding natural and divine law, and the simple interpretation of existing ecclesiastical law, oblige at once and are known, because they do not need promulgation, since they are not new laws.