Promulgation Or Publication
Promulgation Or Publication [1]
i.e. proclamation — usually of a law by the competent legislative power — is, in the Church of Rome, an absolute condition of its binding character ("lex non promulgata non obligat," c. i, 9; Cod. De Legib. i, 14). In consequence, an ecclesiastical law, like any civil law, in order to become obligatory inforo externo must be promulgated in the customary way by the competent authorities of the Church. The binding power of the law rests entirely on the will of the legislator publicly expressed, and begins at the very moment of the promulgation ("lex promulgata statim obligat," c. 1. 10; De post. proel. 1, 5), unless some future period is expressly indicated when it shall be enforced (f. inst. Sext. c. 32; De Preb. 3, 4; Conc. Trid. sess. 24 c. l, fin. De Ref. Matrim.). A law has generally no retroactive power ("lex non retro agit," c. 2, 10; De Constit. i, 2), unless it be merely all explanation or reiteration of a former disposition, or unless retroactive power be expressly given to it. From the moment of the promulgation takes effect also the juridical presumption of the general knowledge of the law, which excludes every excuse of igzorarntia legis (Sext. c. 13; De R. T. v, 13), unless the legislator subordinates the validity of the ordinance to the observation of a certain form of promulgation, and this form has not been observed. Every one whom the law may concern is bound to conform to it as soon as he has obtained, no matter by what means, a knowledge of it. The diocesan ordinances of archbishops and bishops are, as a rule, communicated to the deaconries, and through them, by circular letters, to the curates, etc., who publish them from the pulpit, or by placards at the church doors. The papal see used in former times to address its ordinances to the chief ecclesiastical dignitaries of the countries, provinces, or dioceses which they concerned, and had them communicated by them to the subordinate clerical authorities, for further publication, by way of synods and circular letters. Afterwards the custom prevailed of publishing the general prescriptions of the papal see only at Rome, in acie campi Florae, and of posting them at the door of the Vatican.
Thus the principle was adopted, publicatio Urbi et Orbi. which was acknowledged without contest until the 17th century. It was only after the times of De Marca (De Concordia Sacerdotii et Imperii, lib. ii, c. 15) and Van Espen (De Promulgatione Legumn Eccl., etc., Lovan. 1712) that the necessity of a more special promulgation was from many quarters insisted upon. But the passages of the Roman and canon law quoted to support these views are all of them misunderstood or purposely distorted (Seitz, Zeitschriift fiir Kirchelnrecht u. Pastoral- Tissenschaft, vol. i, § 1, No. 5, p. 90 sq.). It must strike every one that a really universal publication, which would be sure not only to reach every individual, but to be intelligible to him, is utterly impossible, and could not be obtained even by inserting the law in all official and local papers. The binding power of the law cannot depend on that circumstance that it was really made known in all places and to every individual, but on this sole condition that the legislator have publicly expressed his will in the customary way. This act of the legislator must not be confounded with the means and ways that are resorted to in order to insure the widest publicity to the law promulgated by the legislative authority. The latter is no concern of the legislator, but of the executive authorities; and it is not the power of the law that depends on it, but this other and quite different question, to be decided by the judge. whether in a given concrete case transgression of the law may be charged or not. However, the different modern civil legislations insist on a special publication of the ecclesiastical statutes as a condition of their validity, and subordinate this publication to the previous approbation of the civil power. If the Church is content to submit to the worldly governments her ordinances, so far as they affect in some way the civil and political relations of her members, it would be only fair if such papal and episcopal decrees which concern exclusively the dogma and the dogmatic side of the discipline should be independent of the civil placet, and left to the clerical functionaries for free publication. — Wetzer u. Welte, Kirchen-Lexikon, s.v.
