Scotus Academicus, Tomus sextus: De Legibus Divinis et Humanis

The scope of the present Question is to determine whether the promulgation of a law by the authority of the Legislator must necessarily be desired for its efficacy and obligation.

Note 1. Laws are promulgated as soon as they are published to the people, and are, as it were, promulgated thereby, says Pompeius Sextius: hence promulgation is the publication of a law, or the notification made to the community by the authority of the Legislator. Now it is certain that some measure of promulgation of a law is necessarily required for its efficacy and obligation in act: first because Law stands in the manner of a rule and measure of human acts, to which men ought to conform their actions lest they stray from their right end; but they cannot do this unless the law be made known to them, nor can it be made known except by promulgation: therefore in order that it may bind, some promulgation of it is necessarily desired. Then also because law by its nature is directive and illuminative; but what lies hidden in the will of the Legislator, or in the praetor, cannot direct nor illuminate subjects: whence it is deservedly said in the chapter De Legibus, that the most sacred laws do not bind men unless they ought to be understood by all. Finally, because since the will cannot be borne toward what is unknown, it would follow that men would be bound to the impossible if they were held to keep the law before its sufficient promulgation. — I have said advisedly that some measure of promulgation is required, because promulgation is not desired equally in all laws, but variously, and according to the nature of each: for the law of nature becomes known to men in one way, and the divine positive laws, both Evangelical and Mosaic, were promulgated in another. Whether, however, this promulgation pertains to the very essence of law, so that it has no power of binding unless it had first been promulgated, or rather is only a condition for desiring its power of binding, must be determined in the present place.

Note 2. A law can be considered in two ways, namely insofar as it is a rule not yet applied, insofar namely as it has already been constituted with the very Legislator, and insofar as it proceeds from him it has the power of binding; or insofar as it is a rule applied in some way to subjects who, knowing that law, must conform their acts to it, that they may be done rightly and consequently well.

Note 3. As regards the acceptance of a law by subjects, first it is certain that it is not necessary in order that natural and divine laws bind: for whether the people wish to give their assent to these laws or deny it, they are bound no less. It is likewise certain that there is here no question of acceptance of a law by individuals interiorly: on this account almost no law would oblige, seeing that there is no human law which does not seem burdensome to some subject, who would forthwith reject it, if that were conceded to his will. Nor indeed is the question here of non-acceptance of a law by the people joined with the connivance of the superior; for in this case it is certain that the law does not bind, since in order that a law bind, there is necessary the will to bind in him who made the law: but the will of the Legislator would then cease if, with the people refusing observance of the law, he were to connive. — Finally the difficulty need not linger over non-acceptance which may have been derived from long custom on the part of those acting contrary to it: for, as will appear below, a human law contrary to long custom is abrogated; therefore the whole difficulty concerns voluntary non-acceptance which is not founded upon long custom of those acting against it. On this matter consult the jurists.

First Conclusion. — A law considered as a rule applied to subjects essentially requires promulgation: but not so insofar as it is considered as constituted with the Prince himself.

The Conclusion is evident both from what was said in the first Note, and because law is a certain instrument of governance by which the subject is ruled by a superior after the human manner: that is, as understanding and willing, for which it is necessary that the will and decree of the superior be intimated to the subject, that the inferior may accommodate himself thereto knowingly and freely; and because law is directed not to one private person, but to a perfect community, therefore the intimation must be public. Hence, when made in a public manner and suited to the community, that intimation is called promulgation. — Moreover, law is a certain precept: but a precept has not the power of binding unless he who commands manifest and intimate his will: for neither God nor any other Legislator is held to command anything from the fact that he decrees with himself something to be done or not done, unless he signifies it: therefore, etc.

You will say 1. The natural law is truly and properly called a law, and it binds, and accordingly has the power of binding: yet it cannot be assigned when it was promulgated. Likewise the eternal law, by the judgment of many, is reckoned among laws properly so called: but it could not have been promulgated throughout all eternity, as is evident, nor can it be said when it was promulgated in time: therefore, etc.

— I answer, the law of nature was sufficiently promulgated from this very fact, that God implanted it in the minds of men to be known naturally: whence the Psalmist: The light of thy countenance O Lord is signed upon us. — To the second I say that the eternal law, regarded on the part of God, was promulgated both by word and in writing from eternity: because it was promulgated in the divine Word, which is eternal; and furthermore in the book of life, which is eternal also; and these are the two ways by which every law is published, namely either by word or in writing, says St. Thomas 1. 2. q. 91. art. 1. Or rather I judge one should answer with the Doctor in t. d. 3. q. 1, where he treats of the obligation of baptism, that promulgation seems necessary only for positive law: No one, he says, is held to any divine precept unless it be preached to him by someone fit and authentic, or by credible report and the testimony of good men whom anyone ought rationally to believe; and I understand this of positive law, because it is not known interiorly in the heart. By which words he indicates that promulgation seems necessary only for positive laws: which is most true of that promulgation which is made through knowledge received from without: for otherwise it is certain, as we just now said in our first answer, that the natural law is manifested in our minds signed with divine light upon us. It is likewise certain that the eternal law is intimated to us by some sign: namely either by the natural law itself, or by other divine laws, which flow down from that eternal law as rivulets from a fountain.

You will say 2. If there were any reason why promulgation is said to be necessary in order that a law have the power of binding, it would be chiefly because by promulgation the law becomes known to the subjects who are held by the law: but this reason is null, for men are held to many things which they invincibly ignore: e.g. they are held to the observance of the law of nature even though they ignore it invincibly. Likewise they are held to receive baptism, according to that word of Christ John 3: Unless a man be born again, etc. Likewise the possessor in good faith is bound to restitution as long as he detains what belongs to another, before prescription has run. Likewise human contracts are invalidated by human law, whether that law be known or unknown, as is evident in clandestine marriage, and in impediments of marriage, and irregularities, which bind even the unlearned who invincibly ignore the law.

— I answer to the major: promulgation is required so that the law may become known to subjects, who are bound by it through common knowledge, but it is not necessary that it become known by private knowledge. Now there is common knowledge when the law is promulgated. If this is brought forward in the objection, they are arguing about private knowledge.

The second part is proven, namely that a law taken as a rule residing in the legislator himself alone does not essentially include promulgation. For in that way it has its whole power of binding from the very will of the legislator: but the will of the legislator, in order to decree that a law have obligating force, has no need of any external sensible sign by which to establish its decree; and consequently the law thus considered does not require promulgation. Moreover, law is an act of prudence, and also of authority existing in the prince: but an act of prudence and of authority dictating that something is to be done can exist both in the practical judgment and in the will of the prince before any external sign; and therefore the law, regarded inasmuch as it is a rule constituted by the prince, does not require promulgation. Finally, as soon as the law is conceived by the Prince, it is held apt to induce obligation: for it is conceived and instituted precisely that it may bind: but this aptitude suffices for the essence of a law; therefore for this reason a law does not essentially require promulgation. — Nevertheless I judge it must be said generally that laws do essentially require promulgation: both on account of the reasons expressed in the prior assertion, and because, as Gratian says, cap. in istis, dist. 4, Laws are instituted when they are promulgated, and are confirmed when approved by the morals of those who use them.

Second conclusion. — Civil laws, whether imperial or royal, are not held to bind subjects unless they have been promulgated in the Provinces and Kingdoms for which they were constituted.

This indeed is clear from the authentica, Ut novae constitutiones, where the Emperor Justinian decreed that his law had no force unless after it had been presented to the Metropolitans of the Provinces. Nor does it stand in the way that the Emperor speaks there only of imperial constitutions which pertain to testaments; for the reason of that law is no less valid for other matters, as the rubric speaks of all laws, which is this: Ut novae dictae constitutiones post insinuationes earum post duos menses valeant. Now it is an axiom received among Jurisconsults that a rubric stands as a law when it gives a complete sense, inasmuch as it does not conflict with the text, and that it has the power of extending what is stated more strictly in the text. Wherefore laws speaking more strictly are held rather to be a kind of example of a rubric already possessing the force of law than laws themselves. And this is so true that Pius IV, in the Bull on the declaration of the time for observing the decrees of the Council of Trent, cited this rubric as law in these words: Quia in iure crimimum sancitum est, ut constitutiones novae vim nonnisi post certum tempus obtineant, etc. Hence the reason of the rubrics of civil law differs from that of the rubrics of Canon law, which were written in the private sense of Gratian, and neither approved absolutely by Pontifical or royal authority nor accepted by the universal Church as laws. There is added this reason: because it cannot sufficiently be presumed that that law has come to the knowledge of subjects which was not published in that Province in which they dwell. Hence a royal law does not bind unless it has been promulgated according to the custom of that kingdom in which it is brought forth: hence there prevailed in Gaul the custom that Royal Constitutions be promulgated in parliaments; and thence they be sent to the interior benches of the judges of Provinces and regions; nor are they held to bind before they have been published in those places. But as regards ecclesiastical laws, the opinion of many has long prevailed that they do not have power of binding throughout the whole world, however much they may have been promulgated at Rome or elsewhere, unless they be likewise promulgated in each individual Province.

Which is proven. First: The reason why an imperial and royal law ought to be published in each individual Province is that it cannot sufficiently be presumed to be promulgated, so as to come to the knowledge of subjects, that law which is not promulgated in the Provinces: but the same reason holds with respect to Papal laws. Second: Because if in any Province the law of the Roman Pontiff be not published, the people will have some ground for judging either that no such law was issued, or that if it was issued, it is not the mind of the supreme Pontiff that it should bind in that Province. Third: Because Councils, in certain laws which they enacted, declared that they did not bind until after they had been published in each Diocese by the Ordinaries of the places. Thus the Lateran Council under Innocent III, cap. 22, and we have it in cap. Cum infirmitas, de praeemptionibus et remissionibus, decreed that physicians were at length bound by that constitution which commands them, when they are called to the sick, before all things to induce and admonish them that they call in physicians of the soul, that is, that they confess sacramentally, when it had been published by the ordinaries of the places: and the reason of this is the same as of the other ecclesiastical constitutions. Fourth: This same truth is urged from the ancient practice of the Church: for it is established that it was customary for the decrees of the Roman Pontiffs and of Councils to be published in the Provinces, and then they began to bind. Thus we read in Tertullian, book De Pudicitia, cap. 1, that the Decree

of Zephyrinus, Roman Pontiff, for reconciling penitents against the Montanists was affixed to the doors of the Churches and read in the Churches. Thus Dionysius, Bishop of the Olympians, Epist. ad Soterem, attests that there was read to him by Soter, to whom he wrote the letter sent, one sent also by Clement, and that on the Lord's day in the mouth of the faithful. Thus the constitution of Stephen on not rebaptizing heretics was sent through the Provinces, as Cyprian is witness, Epist. 74, which is to Pompey. Thus the decrees of the Nicene Synod, as Marius Victorinus relates, book 2, adversus Arium, were sent through the whole world. Thus also the decrees of Sardica, transmitted together with those of Nicaea, writes Theodoret, book 1, Historicae, cap. 9, and book 2, cap. 8. Thus that of Chalcedon, directed by Leo to the Bishops through the Provinces, as he himself teaches us, Epist. 71 and 81. I pass over others. — And hence it came about that many Councils less noteworthy in the number of their Fathers, because they had been received and approved in the Provinces to which they were sent, had now the force of Councils of the whole West or East, now that of the universal Church. Hence also it came about that many constitutions of the supreme Pontiffs do not bind in many parts of the world, e.g. the Bull of the Lord's Supper, which does not bind in Gaul, Germany, Poland. Hence also it is that Innocent I, Epist. ad Exuperium Tolosanum, as it is related in cap. Posuisti, dist. 82, decreed that the law which Pope Siricius issued against incontinent Deacons and Priests, whom he decreed to be deprived of every honor, did not bind those to whom, as he says, this is not proven to have come.

You will object 1. If our proposition is true, it will follow that scarcely any Papal laws bind; for first, the Decretum of Gratian was compiled together by his private authority, and was never promulgated. Second, the five books of Decretals, which were compiled by Gregory IX, seem to have been promulgated in the Bolognese Academy alone, as is gathered from their preface. Third, the same is also the reason for the sixth book of Decretals, as the gloss well observes in the date of that sixth book. Fourth, the Clementines, which John XXII, shortly after the death of Clement V, by whom they were published, gave to the public, seem to have been promulgated in the Roman curia alone.

— I answer: first, the Decretum of Gratian does not bind: nor even that which perhaps some would not think, inasmuch as it is lectured upon in Academies, because many things are taught in the schools for the investigation of antiquity and for discipline, and not for practice. Whence neither does whatever is contained in civil law bind, although it be lectured upon in Academies. Therefore the Decretum of Gratian binds on the part wherein it contains the statutes of Councils or Pontiffs formerly promulgated in the Provinces, or even inasmuch as it contains certain things approved by the custom of courts. Second, the five books of Decretals were not only directed to the Bolognese Academy by Gregory IX, but also to all the Provinces, in which, he writes, they were promulgated and received, as Matthew Paris records under Henry the third, King of the English. Third, the Liber sextus of Decretals was not promulgated in Gaul. It was published by Boniface VIII, between whom and Philip the Fair there had blazed up grave enmities, which prevented its being promulgated in this kingdom. Only that in this book has authority which otherwise had its own vigor and authority: such are those things which were taken from the Council of Lyons and others received in Gaul: such also are those things which were received either by the custom of courts or by the morals of those using them: e.g. that the Bishop is threefold only, by whom anyone can be enrolled in the number of Clerics: of origin, of benefice, or of souls. Fourth, the Clementines were for the most part received in Gaul: for they coalesce from the decrees of the Council of Vienne, which indeed was convoked in Gaul, and of which the Gallican Bishops were a great part. Then this Clement, made Pontiff out of being Bishop of Bordeaux, summoned all the Cardinals to Lyons, and transferred the Roman curia into Gaul, where it persevered for 70 years and more: wherefore whatever was promulgated by that Pontiff in the curia, it is certain that it was promulgated in Gaul, nor can it rationally be denied that it was promulgated in the individual Provinces of Gaul. Fifth, the Extravagantes communes of John XXII were promulgated also in Gaul: inasmuch as he was the successor of Clement V, a Gaul by nation, declared supreme Pontiff at Avignon in Lyons: nor does it therefore seem it can be denied that they were promulgated in the individual Provinces of Gaul. But those of Boniface VIII were not received on account of the reason given above. Others which are of supreme Pontiffs who sat in Gaul seem to have been promulgated in the individual Provinces. Others finally either ought not to have been promulgated, since they merely absolve from some obligation, or were received by the morals of those using them and by the custom of courts.

You will object 2. Everywhere must be avoided those who are excommunicated by name in any Diocese, on account of the utility of Ecclesiastical communion, as is clear from causa 11, q. 3, although the sentence of excommunication was not everywhere promulgated. Likewise, if anyone knows a place to be under interdict, he cannot celebrate in it, but is bound to observe such an interdict, as is clear from Innocent III, cap. 1, De pastulatione Praelatorum, even if such an interdict has not been everywhere promulgated: therefore by parity of reasoning a Papal law binds, although not promulgated in the individual Provinces.

— I answer the first part of the argument by distinguishing in this manner: That they are to be avoided by each and everyone on account of the sentence of excommunication precisely. I deny: by force of the Ecclesiastical law everywhere received, which provides that they be avoided. I grant. You have this law cited for the cause, and the question.

To the other part I answer, distinguishing in the same manner: but I add that the authority of Innocent is not silent on the matter: because there it treats of the postulation of the Bishop of Auxerre as Archbishop of Sens made by the Canons of the Church of Sens, which Bishop had not observed the interdict laid by the authority of the Roman Pontiff upon the lands of the king of France: but the aforesaid Bishop excused himself for not having observed the interdict, because the sentence of interdict had not come to his notice: neither through letters of the Pope, nor through letters of the Legate, who had published the sentence, nor through the mandate of any executor; and moreover because the said King held no land in the Diocese of Auxerre. But Innocent decrees that the reason of these excuses is not to be admitted: indeed that of the latter, because the whole Diocese of Auxerre was subject to the King of France: but the supreme Pontiff had commanded that the land of the King of France be subjected to the interdict, and the Legate had interpreted the mandate of the Pontiff concerning all the land which lay under the dominion of the king: but that of the former, because in the Metropolitan Church of the same Bishop of Auxerre, namely at Sens, this sentence of interdict had been promulgated, received, and observed: wherefore this authority does not pertain to the present matter.

You will object 3. Those who have been declared saints at Rome ought to be held as saints everywhere, even if the promulgation of the decree of their sanctity has not been made through each single Province: therefore an Ecclesiastical law obliges, even if it has not been promulgated through each single Province.

— I answer the antecedent by distinguishing: in so far as their office ought to be performed through each single Province, or their feast celebrated, I deny; for unto that it is necessary that the law be promulgated in the Provinces; in so far as they are held in veneration as persons worthy of veneration, I grant; for unto that no law is required, but it suffices that the person be declared worthy of veneration.

You will object 4. The Canons of faith oblige, even if they have not been promulgated through the Provinces: therefore equally, in order that Canons and Pontifical laws concerning morals and discipline may oblige, it is not necessary that they be promulgated in the Provinces.

— I answer by denying the consequence, for there is a disparity, in that the Canons of faith are merely declaratory of divine law: but divine law has been promulgated; and therefore no new promulgation is necessary in order that the Canons of faith may oblige: whereas Pontifical laws are not sufficiently promulgated unless they are promulgated in each single Province.

Finally, as concerns the laws of Bishops, I say that in order that they may oblige they must be promulgated, as is wont to be done, in the Parochial missals regularly speaking: but if there be another custom in some particular Church, such a custom must be observed.