Laws need to be promulgated to be valid. Why? A Thomistic story is that valid laws create genuine reasons to act, and reasons are the sort of thing that’s available to a reasonable person. So, the laws need to be practically available to reasonable governed persons. In particular, if everyone has forgot about a law, and the books it was written in have burned down, the law is gone—promulgation is an ongoing affair. And the “practically” rules out such things as: “If you go to room 19235 in the Library of Congress, and enter a certain seven digit combination in the lock that only Congress knows, the doors will open and you will have books of all the laws in front of you.”
All this does not mean that the laws have to be made known to the reasonable persons. For it is encumbent on reasonable persons to educate themselves on laws that are relevant to them. However, since in a modern state the body of laws is too large for a typical reasonable person to study them all, availability also requires more than, say, that the laws be in public libraries, on the Internet, and to hired lawyers.
For it is not reasonable to expect that every reasonable person before they perform some ordinary action will go and search the laws. Rather, as participants in a society we rightly get a sense of what actions are ordinary, intrinsically moral, and done by people without any consciousness that some law might constrain them. And in the case of such actions, it’s not reasonable to be expect someone to look further. If there is a law prohibiting such an action, then I am inclined to think it is invalid—it is failing the promulgation condition, at least in this context.
An interesting thing about this view is that it gives some of the same results as the idea that unenforced laws are not valid. When a law has not been generally enforced, eventually ordinary people will forget (if they ever knew) that the law was there, and will go about their ordinary actions without any consciousness that they might be constrained by a law here. And then it’s not reasonable to expect people to know about the law, and the promulgation condition fails. However, not all cases of unenforced laws are like that. In some cases, people generally do know that there is a law, but they also know it is unenforced and generally ignored, and in such cases there is no promulgation failure.
Here is a somewhat hypothetical example. Ordinary people buy coffee filter cones without any worry that there might be some law requiring them to report the number of cones they purchased to the state and to keep track of destroyed cones in a log. If there is such a law, certainly no one enforces it. Thus, the ordinary reasonable person has no duty to look up whether there is such a law the first time they buy a coffee filter cone in any given state, and if it turns out that there is such a putative law, it has failed to be promulgated to them, and it’s not valid (i.e., it’s not a law) at least in the case of ordinary consumers. (I said this is somewhat hypothetical. Texas has a law governing “precursor chemical laboratory apparatus”. One of the controlled items on their report form is filter funnels, which is precisely what a coffee filter cone is. One assumes that that’s not what they mean, but I am not a lawyer. Transformers are also listed so maybe phone chargers would need to be reported to the state?)
On the other hand, there are non-ordinary actions where a reasonable participant in society knows that it’s not unlikely there are relevant laws, and it is reasonably expected that one find out what the laws are—hiring a lawyer if necessary. If I were to set up shop selling explosives, for instance, I would know that there are likely to be local, state and federal regulations I need to educate myself on.
I should note that my intuitions are driven by my conviction that valid laws are morally binding. So genuine laws aren’t like mere rules in a game or something like that. One could have a hybrid view on which we distinguish between laws and laws*, where a law is morally binding on the governed while a law* is something the state merely has moral permission to enforce in principle. If this distinction were to work, one could have a stronger promulgation condition for laws and a weaker one for laws*.
7 comments:
A Thomistic story is that valid laws create genuine reasons to act, and reasons are the sort of thing that’s available to a reasonable person. So, the laws need to be practically available to reasonable governed persons. In particular, if everyone has forgot about a law, and the books it was written in have burned down, the law is gone—promulgation is an ongoing affair.
This does not seem quite correct as an account of the Thomistic view of promulgation, in which the 'practically' is always *tightly connected to the expectations of customary law* (and thus what counts as promulgated will depend heavily on just what the custom of the society is); and if it were, it would be pretty clearly wrong as an account of how laws have ever worked. The rules governing desuetude *don't* generally hold that promulgation is an ongoing affair, because most legal customs don't have a clear conception of what 'ongoing' could even mean here. Almost universally, it's held that the lapse has to be consistent and long-term, and that fundamental laws are never subject to desuetude, and that ignorance of the law is never an excuse (although, depending on the case, it may remit penalties). As far as I can see, nothing in anything St. Thomas says in his very brief comments on promulgation requires anything contrary to this.
And what Aquinas does say is that promulgation is sufficient when notitia of the promulgation is given to one through others, or *could be* (ST 2-1.90.4 ad2). This seems a much looser requirement than (what seems to be) your requirement that every reasonable person has to be at least able to access the laws themselves. The most plausible reading of Aquinas is that the promulgation has to be given to the community as a whole, not necessarily to every particular person (even at the level of in-principle).
It seems very odd to say that whether you scratch your head is morally wrong or not depends on what people in Washington have done in a case where you do not even have any relevant in principle causal connection to what they have done.
Consider the very plausible principle that there are no retroactive legal prohibitions. Suppose now that you are scratching your head in a spaceship under US jurisdiction that's ten light minutes away from earth, and a law has been passed five minutes ago banning you from scratching your head (for some good reason). Can it really be the case that your action was immoral (though inculpable)? After all, there are reference frames in which your head-scratching was earlier than the passing of the law.
So, probably, we want to say that for the law passed at spacetime location z1 to bind you at spacetime location z2, z2 must be later than z1 in all reference frames. But that restriction means basically that something physical moving at or below the speed of light could travel from z1 to z2. However, why should it matter that something _physically could_ travel from z1 to z2, in cases where nothing _practically_ could? Moral restrictions shouldn't come from merely hypothetical and impractical physical connections.
So I think that if you're traveling in the rocket and it's 15 minutes since the the law was passed, but nobody bothered to send you a signal about it and you have no reasonable reason to suspect there might be a law governing the scratching of your head, it's not immoral to scratch your head.
As for "it would be pretty clearly wrong as an account of how laws have ever worked", I don't know how we are supposed to know "how laws have ever worked". Sure, I am happy to grant that societies have customarily punished people for putative laws that have not been promulgated in accordance with the stricter standard I have in mind. But it does not follow from this that (a) these were actually laws rather than just apparent or putative laws, (b) the societies acted permissibly in so punishing, or (c) those who acted contrary to such putative laws acted morally wrongly.
Indeed, given moral internalism, we could be confident that (c) is false. And we can argue from the denial of (c) to the denial of (a) if we accept the principle that genuine laws are morally binding. I don't accept moral internalism, but I think the right picture of morality is going to have to include a number of features of internalism. I am suspicious of the idea of moral obligations with respect to ordinary situations that a reasonable person couldn't reasonably be expected to know about, except in quite exceptional cases.
One more thought. It seems to me that there is something really problematic about the idea that the state has the authority by fiat to make a morally perfect person do something morally wrong. But, assuming laws are morally binding, on a weak view of promulgation, the state could at 5 am in the morning pass a law requiring everyone to fast from breakfast that day, and the morally perfect person would still have breakfast and thereby act immorally. (Granted, since laws need to be reasonable, the state would need some kind of a public good reason for requiring the fast. But it's easy to find such a reason--for instance, the state might decide that fasting from breakfast will make everyone more sympathetic to the plight of the poor, or better prepare them for the rigorous of military action in case of a foreign invasion, or whatever.)
In fact, were it not for the fact that Jesus in his human nature is King of the Earth, on a weak view of promulgation, Caesar could have got Jesus either to do something immoral or to have to engage in a miracle. For Caesar could have decreed that everyone must fast from breakfast on a certain day when Jesus wasn't planning on fasting, and then Jesus would either immorally eat breakfast or else he would have to miraculously rely on knowledge originating in his divine nature to know not to do so. And I don't think we need for Jesus to engage in miracles or be King of the World (though indeed he did miracles and was King of the World) to make him sinless.
Your responses utterly baffled me, and so it took some thinking even to work through what your line of thought seems to be. However, my current idea is that you are simply confusing law and sanction.
Laws in a natural law theory, Aquinas's or any other, are purely formal. They don't have a rate of propagation because they don't propagate. They begin to be (it is receiving promulgation that makes them actually exist), and then they just *are* for the community that has the relevant common good. You seem to think that promulgation is an activity of efficient causes for Aquinas, but in Aquinas's definition of law, which is a causal definition, promulgation is the *formal cause* of law. (The quasi-material is rational ordering, which is what remains the same through the change from non-law to law, the final cause is common good, and the efficient cause is the caretaker for what is common, i.e., legislator.) Once it is promulgated, the law exists, it has the form of law, and it exists for the entire jurisdiction of the community for which it is a law.
What *does* have to propagate is the enforcement of law, the application of sanctions to execute the law. It's certainly absurd to think of *that* traveling quickly; in the modern world, enforcement or sanction travels at the speed of bureaucracy, which means it takes months even for the enforcement infrastructure even to be completely put into place -- and it is not entirely unheard of for it to take years for there to be any enforcement for a law, or even for enforcement to fail to reach everywhere. But in a natural law theory, and certainly in Aquinas, sanction or enforcement is not an essential element of law, but something that follows from and depends on law. The law does not depend on it. It is of course the case that it is unjust to punish people for not doing the impossible, so if someone literally cannot comply with a law, a just legal system will not punish them, and that includes invincible ignorance. But (1) the ignorance really has to be invincible, because mere ordinary ignorance is no excuse, and (2) ignorance, even invincible ignorance, does not make the law not a law, because the law can be promulgated even if there are particular people who literally cannot know it. Indeed, there are always going to be such -- minors and people with mental illnesses and hermit recluses, and the like. If you accidentally crash your plane into a foreign country after getting lost in a storm, you are under the authority of the laws of the country, because you are in its jurisdiction, and it does not matter that you were a foreigner who was unaware that you even crossed into their airspace or crashed on their territory. The law applies to you, because you are in a jurisdiction where it is already promulgated.
The federal government of the United States has a three-step promulgation, although only the middle step is the promulgation proper. The first step is the publication of the slip law: this establishes that the law has gone through the proper processes of legislation. Almost nobody ever looks at slip law unless they are planning ahead, because slip law is preparatory. The slip law is then compiled into the Statutes at Large, which are the official law of the United States. This is the formal promulgation: once it's in the Statutes at Large, it is the law. Most citizens don't even know that the Statutes at Large exist (I know, because none of my students ever do), but their a matter of public record and once it's in the Statutes at Large, you are deemed to be able to know it, or to be informed of it by legal counsel. In reality, though, even lawyers and judges almost never look at the Statutes at Large; the Statutes at Large are summarized into the U.S. Code, and almost everybody almost all the time follows the U.S. Code, despite the fact that it's only an official summary, and does not itself have any force as law (unless the Statutes at Large explicitly designate a section to have the force of law). You do have a causal connection to the Statutes at Large: you are part of the United States and its customary-law regime, and in that customary-law regime, Congress has the authority to make laws and it promulgates it in the Statutes at Large, and everyone treats the laws written in the Statutes at Large as the law, although everyone does so only very, very indirectly and most ordinary citizens very, very confusedly by just trusting to legal experts (and, in practice, as any trial lawyer can tell you, often just guessing what 'the law' might be, very often not correctly). One of the things I find baffling about your position is that it seems to require us to say that the United States has almost no statutory laws; most people don't know about the Statutes at Large, and almost everyone in practice works off a summary that doesn't always have the force of law. The laws as such don't actually reach most people because we're a society of hundreds of millions and there is no practical way in place, has never been a practical method in place, to get it to people, even indirectly. But the laws are public, and therefore they are published, which is just what promulgation is, and therefore (assuming they meet the other requirements of the definition) they are laws.
I was thinking that the laws have to "propagate", because they make contrary actions immoral. This is independent of any state enforcement or legal sanction (I am inclined to think sanctions are not necessary for law, but that's another question). Do you really think the state has the normative power to make a wholly virtuous person's action immoral just by passing a law that the person has no practical way of knowing about?
That said, I have since come to be unsure that law makes contrary actions immoral. Perhaps instead of being morally required to obey the laws, we are only morally required to try to obey the laws, and under the description "obey the laws" rather than "obey specific laws X, Y and Z". If so, that obviates my main worry about promulgation.
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