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*.
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