Thread by @FrJamesBradley

Let’s talk promulgation. Last week we received the new motu proprio #TraditionisCustodes. I won’t be commenting here on the substance of the new law, which is better left to a more reflective forum, but I will make some remarks on the nature of promulgation. #CanonLawMatters

First, let’s remind ourselves of a general definition of law. There are plenty, but here’s Suarez: “law is a common, just, and stable precept, which has been sufficiently promulgated.” So all legislation requires promulgation; it is part of the legislative process.

In fact, we can say that promulgation is a “fundamental act” (Hervada) in the process of legislation, and so cannot be dispensed. This proceeds from natural justice: the subjects of the law have to know they are subjects of the law. Anything less is unjust.

Civil legal systems often have a given place for the promulgation of laws. In the common law system we speak about laws being “on the statute books” as a way of making it clear that they are, in fact, promulgated laws that have force.

The canonical system is no different. Promulgation used to happen with new legislation being nailed to the doors of the Vatican Basilica and the Lateran. Times change, though, and so in 1909, Pope Pius X established a ‘gazette’ or official commentary: the Acta Apostolicae Sedis.

Still, promulgation is very closely related to the role of the legislator himself. So whilst promulgation cannot be dispensed, the mode of promulgation can vary depending on the priorities of the legislator: is the new law urgent? Particularly complex etc?

We see this in the 1983 code, which regulates the manner and modes of promulgation for universal ecclesiastical legislation in c. 8 §1. It provides what canonical doctrine calls a general mode and a specific mode of promulgation.

Interestingly, this is not the same for particular law. In c. 8 §2, the law provides that the particular legislator (e.g. diocesan bishop) is to determine a place for promulgation. Some people think this means it gives a free hand, but I think all it does is…

…require the particular legislator to legislate in particular law for the general mode of promulgation in his diocese; not determine a specific mode each and every time he issues law. How are people supposed to keep up with that?

Anyway. In the universal ecclesiastical law, the general mode of promulgation is the Acta, and the specific mode is left up to the legislator to determine “in particular cases.”

In fact, in recent years we’ve seen this specific mode become a stable alternative mode and place. Lots of law is now promulgated in L’Osservatore Romano. That’s now behind a paywall, which raises more issues (article forthcoming!).

A part of the act of promulgation is also the determination of the suspensive period. Regatillo tells us that a promulgated law is intrinsically perfect and has the power to bind subjects, but it is opportune that time be given so the new law can be made known.

This suspensive period is the “vacatio legis.” In c. 8 §1 it is in the law on promulgation, and whilst promulgation itself cannot be dispensed due to natural justice, the law does provide that the legislator can shorten or extend the normal suspensive period.

The norm for universal ecclesiastical legislation is 3 months from the date of the issues of the Acta, but the legislator may establish “a shorter or longer suspensive period” (c. 8 §1).

Again, note that the norm here requires the legislator to enact a *shorter* or *longer* vacatio legis. It does not anticipate that the legislator will dispense altogether with the suspensive period, so closely associated is it with natural justice.

In the new motu proprio, as in other recent universal legislation, the legislator has determined (as he is free to do) that no suspensive period be preserved at all. That’s his choice to make, and his prudential judgement to give. I completely affirm and defend that.

At the same time, I do think it is worth reflecting on the frequency by which new laws are promulgated in the specific mode (and the same one repeatedly at that) and without a vacatio legis. These things are there, not to cause problems, but to ease the passage of legislation.

Many bishops - of all stripes and sympathies - have already responded to the new law by saying, “I need time to work out how to implement this.” They have, in fact, established an artificial suspensive period. That shows how helpful this can be.

So, of course, this is absolutely not a judgement on the legislator, who I would defend to the hilt as being free to make this choice. Rather it is a reflection on the norms of promulgation, and their utility in most situations. And another reason why #CanonLawMatters.