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The Promulgation of Law

Published online by Cambridge University Press:  02 September 2013

Gilbert Bailey
Gilbert Bailey
Affiliation:
Indiana University
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Extract

“The impression of an inward principle,” asserted Thomas Aquinas, “is to natural things what the promulgation of law is to men; because law, by being promulgated, impresses on man a directive principle of human actions.” Promulgation is of the very essence of law, and a sine qua non of legal obligation. This is true both logically and historically.

The very idea of obedience presupposes knowledge of that which is to be obeyed, without which knowledge there could be only the coincidence, never the obligation, of obedience. If human relationships are to be calculable, the people of a community must know, and know in advance, the rules by which they are to act and by which they may expect other men to act. Here is a proposition of such obvious force that any conception of legal obligation is almost bound to deal with it as an ethical obstruction to law enforcement which must be obviated by promulgation and a supplemental overall presumption that “everyone knows the law.”

Type
Research Article
Information
American Political Science Review , Volume 35 , Issue 6 , December 1941 , pp. 1059 - 1084
Copyright
Copyright © American Political Science Association 1941

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References

1 Aquinas, , Summa Theologica, Vol. VIII, 36.Google Scholar

2 “A bare resolution confined in the breast of the legislator, without manifesting itself by some external sign, can never properly be called a law. It is requisite that this resolution shall be notified to the people who are expected to obey it.” Blackstone, , ‘Introduction,’ Commentaries, Sec. II, 44.Google Scholar “Wherefore, in order that a law obtain the binding force which is proper to a law it must needs be applied to the men who have to be ruled by it. Such application is made by its being notified to them by promulgation. Wherefore promulgation is necessary for the law to obtain its force.” Aquinas, op. cit., 7–8. “A law is not really law until it has been made known.” Gratian, , Decretum Gratiani, c. 3Google Scholar, dist. VII. “In order for a law to exert its force, knowledge of the legislator, and of the law as well, is required on the part of one for whom the law is passed.” Pufendorf, , Elementorum Jurisprudentiae Universalis Libri Duo (trans. by Oldfather, W. A.), Vol. II, 154–155.Google Scholar

3 See McKean, Frederick G., in St. Louis Law Review, 96–107.Google Scholar The author argues that: (1) the maxim, Ignorantia legis neminem excusat, should not be compounded in a syllogism with the presumption of legal knowledge; (2) the maxim does not require the presumption of legal omniscience to support it; (3) it could be amply justified in terms of pure expediency; (4) it has been abridged and discarded so many times as to be unworkable. See also 32 Harvard Law Review, 283–285. Here the maxim of inexcusable ignorance is itself condemned as a “decrepit doctrine unsupported on principle and unjust in operation,” which should be abolished by legislative act “establishing mistake of law on an equal footing with mistake of fact.”

4 Wigmore supplies a noteworthy exception, namely, the Japanese code of 1790, the rubric at the end of which prescribes that it is “not to be seen by any but officials concerned.” Panorama of the World's Legal Systems, Vol. II, 483–484. “In general, the laws and legal decisions were not publicly promulgated; they were circulated in manuscript for the use of officials only … and were not addressed to the people.” Ibid. Wigmore's explanation of this apparent contradictio ad absurdum is in terms of a then prevailing conception of justice, the belief in a “rule of men” rather than a “rule of law.” Laws, he says, were commands addressed to the rulers, which did not need to be generally circulated. After the “Burning of the Books” (Code of Chow, 212 B.C.), the ruler decreed: “Whoever wants to know the laws may go to the magistrate and learn of them.” Wigmore, op. cit., Vol. I, 158. Plato does not touch upon the problem of promulgation as it relates to the “rule of men,” because there is no place in the ideal state for an average rule, for equitable treatment of like cases, or for crystallized intelligence. Plato's codes are introduced with the restoration of law in his second-best state of the Statesman and the Laws when the divinely-mad philosopher king and his art are consigned to an imaginary guardianship and room is made for habit, for convention, and for law. In ancient Chinese philosophy, the much quoted saying of Confucius, “Let the people abide by the law, but let them not be instructed in it,” is to be explained in these terms. Confucius believed that the only true government was one which relied on the unbridled virtue of the men in power. “I can try a suit as well as other men,” he says, “but surely the great thing is to bring it about that there will be no going to law.” See Analects, bk. XII.

5 Carlyle, , Medieval Political Theory in the West, Vol. II, 106.Google Scholar

6 Aquinas, op. cit., 8. See also Pufendorf, op. cit.

7 Cicero, , De Republica (translated by Keys, C. W.), bk. III, ch. XXII, 211.Google Scholar

8 Principles of Natural and Political Law (trans, by Nugent, ), 126–129.Google Scholar

9 Cicero, , De Legibus, bk. I, ch. VI, 317–321.Google Scholar Certain engaging complexities are introduced into the promulgation of natural law by its identification or association with a law too holy to be generally intelligible. See Aquinas, op. cit., 9, 10, 29–31, and St. Germain, Doctor and Student, Chap. I, 4. According to Francisco Suárez, natural law is promulgated in a twofold way. “First, by natural reason; secondly, by the law of the Decalogue written on Mosaic Tablets.” De Legibus Ac Deo Legislatore (quoted from Scott, J. B., 22 Georgia Law Jour., 405Google Scholar, in Jerome Hall's Readings in Jurisprudence).

10 St. Ambrose, St. Hilary of Poitiers, St. Augustine, and others of the church fathers acknowledge the existence of a self-promulgating law of nature, distinct from what St. Paul recognized as the revealed will of God, “a law written on men's hearts, recognized by men's reason.” Carlyle, op. cit., Vol. I, 83, 104–106.

11 Politicus, Dialogues of Plato (Jowett, ), Vol. III, 584.Google Scholar

12 Ibid.

13 Politics (Jowett, ), Vol. I, 100.Google Scholar

14 Carlyle, op. cit., Vol. II, 62–63, 155–156. See Aquinas, op. cit., 80–81.

15 Wilson, James, Works, Vol. I, 57.Google Scholar See also McIlwain's, Constitutionalism and the Changing World, 145.Google Scholar

16 “Human customs everywhere fit themselves into the law. As a rule, whoever follows these customs may be sure of not offending the law. Only in this way can the ordinary man, to whom all the rules are not accessible in practice, escape the disagreeable consequences of the law.” Leonard, , “The Vocation of America for the Science of Roman Law,” 26 Harvard Law Rev., 289–407.Google Scholar

17 See p. 1077 and n. 82.

18 This kind of reasoning is implicit in the teachings of Marsiglio of Padua, one of the first men to point out that laws are not discovered in the sky but made in legislative assemblies. Perhaps Marsiglio's argument that law is not valid until promulgated is suggestive at this point. The principle is acknowledged in the law of Scotland by limiting the presumption of legal knowledge to laws which have been published. Erskine, , Principles of the Law of Scotland, Chap. I, 1–6.Google Scholar See A Defense of Liberty Against Tyrants (edited by Laski, ), 150Google Scholar: “… after the law is once enacted and published, there is no more dispute about it; all men owe obedience to it, and the prince in the first place to teach other men their duty….”

19 Blackstone, op. cit., bk. I, ch. II, 185.

20 Most of the ancient codes were exhibited publicly by inscribing them upon scrolls or tablets. For accounts of the various methods of promulgation, see Wigmore, Panorama of the World's Legal Systems; Kocourek and Wigmore, Sources of Ancient and Primitive Law, Part III; Diamond, Primitive Law, Chaps. IV–X.

21 Maine, , Ancient Law, 13.Google Scholar In primitive Iceland about 1000 A.D., the solitary official of the republic was called the Lögsögumator, which meant speaker or declarer of the law. It was his duty to recite aloud, in the hearing of the greater number present at the Ting the whole law of Iceland. He was bound to answer everyone who asked him what the provisions of the law actually were. Bryce, , Studies in History and Jurisprudence, 275.Google Scholar A more refined sort of declaratory promulgation was practiced in early Roman law. The emperors, by the use of a ‘judicial rescript,’ would reply to a request for instruction of law on a particular case, an early antecedent of the declaratory judgment. Wigmore, op. cit., Vol. I, 188.

22 Carlyle, op. cit., Vol. I, 104–105; Vol. II, 111. See Aquinas, op. cit., 51–52.

23 Ibid., Vol. III, 41, 46; Blackstone, op. cit., Intro., Sec. II, 45.

24 See Webster's Dictionary for distinction between promulgation and publication.

25 Aquinas, op. cit., 36–57. See also Vindiciae contra Tyrannos (ed. by Laski, ), 144.Google Scholar

26 Ibid., 7–8.

27 Carlyle, op. cit., Vol. II, 46–47. See also McIlwain, op. cit., 154–160.

28 See Sabine, , History of Political Theory, 203–204.Google Scholar

29 Carlyle, op. cit., Vol. III, 41. As Fortescue says, the laws of England are natural, customary, or statute: “the two former, when they are reduced to writing, and made public by a sufficient authority of the prince, and commanded to be observed, they then pass into the nature of statutes.” Fortescue, De Laudibus Legum Angliae, ch. XV. (Quoted in Dickinson's, JohnAdministrative Justice and the Supremacy of Law, 86–87Google Scholar).

30 McIlwain, op. cit., 145, 147; Carlyle, op. cit., Vol. VI, 136–140.

31 Sabine, op. cit., 204–205; Carlyle, op. cit., Vol. I, 236–237.

32 A. Van Hove, “Promulgation in Canon Law,” Catholic Encyclopedia.

33 Ibid.

34 McIlwain, op. cit., 127–128, 146, 168, 158, 165.

35 Ibid., 146, 148.

36 Rex. v. the Bishop of Chichester, 4 Pasch. 39 Edw. III, 7; Coke's, Institutes, 26.Google Scholar

37 See Blackstone, op. cit., bk. I, ch. II, 135. Holdsworth does not share Blackstone's view that the continued publication of laws subsequent to the above case was “merely for the information of the whole land.” He says that “though it was held in 1366 that such publication was not necessary to their validity … publication was very necessary, for, as we have seen, knowledge of the law was essential to all those who had property to protect…. The forms of the law and physical violence had come to be alternate instruments to be used as seemed most expedient. This was the reason why knowledge of the laws was so widely diffused at this time.” History of English Law, Vol. II, 436.

38 Blackstone, op. cit., Intro., Sec. II, 46.

39 Ibid., bk. I, ch. II, 185. The point in the common law where this idea of representation dwindles to a bare presumption has not been determined, and, as Bentham indignantly affirms, it is hardly worth the trouble to ascertain. Jurists of such stature as Fortescue, St. Germain, and Coke, although they face the fact that knowledge of law is an unremitting condition of obedience to law, espouse no theory or fiction of representation to justify the presumption of legal knowledge. According to St. Germain, law gets its name from the manner in which it is promulgated; human law, therefore, must have a human promulgation by the prince. Fortescue, whom Coke is said to have followed on this point, expressly states that statutes, which are themselves only promulgations of natural law and custom, do not pass into the nature of statutes until they are made public by authority of the prince and commanded to be obeyed.

40 Ibid., Intro., Sec. II, 45–46. This is sufficient. “Once the law is notified or prescribed in the usual manner, it is then the subject's business to be thoroughly acquainted with it, for if ignorance of what he might know were admitted as a legitimate excuse, the law would be of little effect but might always be eluded with impunity.” Ibid., 46.

41 Ibid., Intro., Sec. II, 46.

42 Halévy, , The Growth of Philosophical Radicalism, 13, 17–18.Google Scholar

43 Bentham, op. cit., Vol. VI, 519–520.

44 Ibid., 546–547.

45 Government by unwritten law Bentham called “government by laws which do not exist”; the idea of natural law he condemned as a mere metaphor; the fiction of constructive presence, whose authorship he incorrectly attributes to Coke, is dismissed as a “notable piece of astutia”; while the bare presumption of legal knowledge he regarded as symbolic of law's “unspeakable tyranny.”

46 Op. cit., 519.

47 “That a law may be obeyed, it is necessary that it should be known; that it may be known, it is necessary that it be promulgated … [but] to promulgate the English laws as they exist at present; to pile the decisions of the judges upon the top of the statutes of Parliament, would be chimerical; it would be to present the seas to those that thirst; it would do nothing for the mass of people who would be unable to comprehend them.” Ibid., Vol. I, 157. “It is not so much the science of law that produces litigation, as the ignorance of it.” Cicero, , De Legibus (Translated by Yonge, ), 406.Google Scholar

48 Ibid., Vol. VI, 519. “In England the business of promulgation is a very simple affair. In the body of every act of Parliament, a day is specified in which it shall be considered as being in force. Nothing is done to circulate it by the King, or judges, or anybody else; but a copy is given to the King's printing office where it is printed in an obsolete obscure type, and inconvenient folio form, and sold, as may be expected under a monopoly, at a dear price; and there it lies for the use of anyone that has money to spare to buy it, and thinks that it is worth his while to do so. Every man is then supposed to know and to understand the law….” Ibid., Vol. IV, 312.

49 Ibid., Vol. VI, 519.

50 Ibid., Vol. IV, 481–482.

51 Ibid., 481.

52 Ibid., 160–161. “To give a reason for a law, is to show that it is conformable to the principle of utility.” Ibid., Vol. I, 163.

53 Seemingly, Plato presupposes that the laws will be generally known. The aim of the philosophic preamble in the Laws is to persuade the citizens to accept the commands by demonstrating “that they are the logical result of principles in which they believe…. His advocacy of the preambles shows the strong feeling which must always be present to the philosophic mind of the value of the raison d'être of any claim to allegiance and any assertion of obligation.” Barker, Ernest, Plato and His Predecessors, 305–306.Google Scholar Bentham's advocacy of preambles, however, emphasizes the fact that knowledge of the law is required before persuasion can be added to command. See op. cit., Vol. I, 159–162; also Vol. VI, 519–520. See also the Politics of Aristotle (Newman), No. 1, 440.

54 Ibid., Vol. I, 159.

55 Ibid., 158. The kind and degree of publicity given to the penal code and to contract law suggested particular problems. With regard to contracts and wills of sufficient value, it should be required that they be written upon stamped paper bearing upon its margin a notice of the laws concerning that particular transaction. Ibid., 159. For a detailed discussion of contract law promulgation and “promulgation paper,” see Vol. VI, 522. The promulgation of the penal code involved a special humanitarian consideration, predicated upon the preventionist character of utilitarian penal reform. Here it was necessary that specific punishments as well as the prohibitions themselves and their reasons should be promulgated, since the natural notoriety characteristic of some criminal laws never extends to the specific punishments which, however, provide the motives legislators rely on for obedience. Ibid., Vol. I, 158.

56 Ibid.

57 Ibid.

58 “If the study of law is dry, it arises much less from the nature of the subject, than from the manner, in which it has been treated…. The truths developed in the laws are interesting; and when they shall thus have been arranged and their connection exhibited, this study will become interesting to the young, instead of repulsive even to those who are compelled to engage in it. When it shall have been rendered easy of acquisition, it will even become a disgrace not to be acquainted with it.” Ibid., 160.

59 “The terms of the law may be clear and familiar: add to them the reason of the law, and the light is increased; no doubt rests upon the real intention of the legislator: the mind of the reader holds immediate communion with the mind of the author.” Ibid., 160–161.

60 The reasons annexed will serve as a kind of technical memory … a kind of guide in those cases in which the law was unknown: it would be possible to judge beforehand what its regulations would be….” Ibid., 161.

61 “If laws were founded upon reason … obedience to the laws would come to be scarcely distinguishable from the feeling of liberty.” Ibid., 161.

62 Ibid., Vol. IV, 483.

63 Bentham, op. cit., Vol. VI, 520, 543–544.

64 Ibid., Vol. I, 157; Vol. VI, 520.

65 “With the progress of civilization … what otherwise would have remained common, becomes appropriated to particular classes…. Law perfects its language, takes a scientific direction, and, as it formerly existed in the consciousness of the community, it now devolves upon the jurists…. Law is henceforth more artificial‥‥.” Savigny, , Of the Vocation of Our Age for Legislation and Jurisprudence (Trans, by Howard, ), 28.Google Scholar

66 Pages 1073–1077 of this study are, for the most part, an intepretation of the relevant material in Aumann, The Changing American Legal System; Reinsch, English Common Law in the Early American Colonies; and Morris, Studies in the History of American Law.

67 See Reinsch, op. cit., 7, 11, 53–57; Aumann, op. cit., Chaps. I, III; Morris, op. cit., 41–46.

68 According to Professor Aumann, the extent to which the colonies could and did adopt the provisions of the common law during the course of the seventeenth century is a matter of dispute between two groups of historians. See op. cit., 7–9. Their differences are largely a matter of emphasis and interpretation, however, and have no particular relevance to the subject of promulgation.

69 Reinsch, op. cit., Chap. IV; Aumann, op. cit., 12, 22, 25. This ambiguity is to be explained by distinguishing between the theory of law and the administration of law in the early New England colonies. Although the Mosaic Tablets and the Bible were usually only secondary sources of law, the inviolable sovereignty of God was part and parcel of Puritan doctrine. Thus the Massachusetts Body of Liberties was not really promulgated as law, but the general court was authorized to consider it as a code of rules having the full force of law. See Morris, op. cit., 30–38; Aumann, op. cit., 10–11; 58–61; Miller, , The New England Mind, 197–198Google Scholar; Parrington, Main Currents of American Thought, Chap. III; Reinsch, op. cit., 13–16; Figgis, , Divine Right of Kings, 223.Google Scholar

70 Massachusetts Body of Liberties, Harvard Classics, Vol. XLIII, 66–67.Google Scholar

71 Arbitrary Government Described and the Government Vindicated from That Aspersion (1644). Harvard Classics, Vol. XLIII, 99–100.

72 Ibid., 99.

73 Reinsch, op. cit., 12; Morris, op. cit.; Aumann, op. cit., 46.

74 “It should be mentioned that a considerable body of opposition to the English common law sprang from sources which were not patriotic or political in character, or influenced by the dictates of some special interest. It was an opposition which was derived from a somewhat different set of circumstances and may be explained as being part of the frontiersman's usual opposition to scientific law.” Aumann, op. cit., 82.

75 Elijah Paine, Jr. (Counsellor at Law), Reports of Cases Argued and Determined in the Circuit Court of the United States for the Second Circuit, Comprising the District of New York, Connecticut, and Vermont. Cf. 27 North American Rev. 179, July, 1928. (Quoted in Aumann, op. cit., 73).

76 Ibid.

77 See Aumann, op. cit., 127–129.

78 As finally adopted, the Field codes were mainly procedural in character. Field's proposals, however, and the arguments which were directed against them centered around the codification of substantive private law. See Field, , “Codification,” 20 Amer. Law Rev., 1.Google Scholar Compare Field's argument with that of Bentham, op. cit., Vol. VI, 520.

79 Ibid.

80 Pound, Roscoe, Spirit of the Common Law, 145–146.Google Scholar

81 Carter, , “The Provinces of the Unwritten Law,” 24 Amer. Law Rev., 1–24.Google Scholar

82 Carter, , “The Ideal and the Actual in Law,” Reports of American Bar Association (1890), Vol. XIII, 217–225.Google Scholar Taken together, the two articles by Mr. Carter referred to above present a curious argument. Since law is essentially custom, Mr. Carter suggests it is, “for the most part,” known to the people. And it is unnecessary to codify that which is generally known. On the other hand, codification is impossible for the very reason that the law can never be known to anyone. “One conclusion is easily demonstrated; and that is that it is impossible to write down the law applicable to any future transaction because it is impossible to know the law applicable to any future transaction.” Thus the law possesses at the same time the opposing virtues of natural notoriety and complete unknowability, both of which argue against codification.

83 Judicial review, whether it is based on an interpretation of the law of nature, the due process clause, or a statutory enactment, rests on the assumption that judges, and judges only, can ultimately divine the mysteries of the law.

84 Wigmore, , Panorama of the World's Legal Systems, Vol. II, 483–484.Google Scholar

85 Bentham, op. cit., Vol. VI. 519.

86 Rep. David J. Lewis of Maryland, arguing for the Supreme Court bill of 1937 and against judical review, declared; “A court house veto fails fatally, besides, because since the citizen is conclusively presumed to know the law, and is entitled to know whether it is law when it passes, to fashion his conduct accordingly, any veto should take place before the obligations of the law can attach.” Cong. Rec., Vol. LXXXI, Part 2, p. 1983.

87 Nature and Sources of Law, 97–98.

88 In this particular case, the Supreme Court of the United States found a statute to be contrary to due process of law because it failed to provide a standard of conduct which it was possible to know. The Court suggests that the general public or a particular group of persons whom the government seeks to regulate has a right to know what are the rules and standards which have been prescribed for them. International Harvester Co. of America v. Commonwealth of Kentucky, 234 U.S. 216 (1914).

89 There is one kind of promulgation more unreasonable, Blackstone says, than writing laws in small script and posting them on high pillars. “That is called making laws after the fact.” Op. cit., Sec. II, 45. James Wilson, a professed student of Blackstone, also declares that ex post facto laws are invalid because they violate in the most flagrant manner “the promulgation principle.” The espousal of such a notion by one of the Constitution's framers appears to lend credence to the argument of some scholars that the ex post facto clause in the United States Constitution was originally intended to apply to civil as well as to criminal laws. See Field, O. P., “Ex Post Facto in the Constitution,” 20 Mich. Law Rev. (1921), 315–331.CrossRefGoogle Scholar It is to be noted in this connection that the deferred execution and the publication of statutes tend to follow the legal distinction between retroactive civil and criminal laws Municipalities are uniformly required to publish their penal ordinances, while only the most important civil ordinances are usually published; and the delayed execution of federal laws is given special application with respect to punitive measures.

90 Cooley, , Constitutional Limitations, 155.Google Scholar

91 A digest of constitutional provisions relating to the deferred execution and publication of statutes as they affect the presumption of legal knowledge may be found in Cooley, op. cit., 156–157. Such provisions are also contained in Stimson, , Federal and State Constitutional Provisions, 255–256Google Scholar; also in State Constitutions, Comparative Provisions, compiled by the Legislative Reference Bureau of the Michigan State Library.

92 See Magruder, and Claire, , The Constitution, 41.Google Scholar

93 Cooley, op. cit., 155.

94 See Wilson, op. cit., Vol. I, 57.

95 Cooley, op. cit., 155–156.

96 Indiana Constitution, Art. 4, Sec. 28.

97 In Iowa, for example, statutes are published in two papers of general circulation; in Wisconsin, in a private newspaper which is designated as the “official state paper.” In Louisiana, statutes are published in the official state paper, the constitution providing that the laws shall take effect upon publication in the city where the paper is published, elsewhere not until thirty days afterwards.

98 Bailey, Gilbert, A Definition and Appraisal of Legal Advertising, with Special Application to a Selected Group of States (Bureau of Government Research, Indiana University, Bloomington, Ind., 1941).Google Scholar

99 Ibid., 43–47.

100 See Walker, Harvey, Public Administration, 296.Google Scholar

101 Bailey, ibid., 55.

102 Panama Refining Company v. Ryan, 293 U.S. 388 (1935).

103 See Cooley, op. cit., 155.

104 Panama Refining Company v. Ryan, 293 U.S. 388 (1935).

105 Carr, C. T., “Ignorance of the Law”, 9 State Government 149 (1936)Google Scholar: Witte, E. E., “A Break for the Citizen”, 9 State Government 73 (1936)Google Scholar; Andrews, J. B., Administrative Labor Legislation (1936), 103–107Google Scholar; Jaffe, L. A., “Publication of Administrative Rules and Orders” (1938), 24 Amer. Bar Assoc. Jour. 393–397Google Scholar; Ronald, J. H., “Publication of Federal Administrative Legislation” 7 George Washington Law Rev. 52 (1938).Google Scholar

106 See, e.g., State v. Retowski, 36 Del. 330, 340–341 (1934); Goodlove v. Logan, 217 Iowa 98, 107, 251 N.W., 39, 43 (1933); State v. Grimshaw, 49 Wyo. 192, 209, 53 P. (2d) 13, 18 (1935).

107 “Now in order to have the meaning of the law rightly understood, it is incumbent upon the promulgators to use the utmost possible perspicuity. If anything appear to be obscure in the laws, its interpretation is to be sought from the Legislator or from those who have been publicly appointed to administer justice in accordance with them. For it is their special function to apply the laws to individual instances by interpretation, or, in other words, to make clear, by the process of specifying individual acts, just what provisions the legislators have made regarding them.” Pufendorf, , Elementorum Jurisprudentiae Universalis Libri Duo (trans, by Oldfather, W. A.), Vol. II, 154.Google Scholar

108 Dialogues of Plato (Jowett, ), Vol. III, 580–581.Google Scholar

109 Ibid.

110 Ibid.

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