Aquinas finishes his qu. 90, on the nature or essence of law, with Article 4: “Whether promulgation is essential to a law?”
As usual, wrong answer first: “It seems promulgation is not essential to a law,” because:
Objection 1: natural law binds without formal promulgation;
Objection 2: law binds or obliges not only those to whom it is promulgated, but also others;
Objection 3: some of those others are future persons who will be subject to the law, but promulgation takes place only in the present.
On the contrary, from Gratian’s (“The Jurist”) Decretals (a major compilation of canon law in the 12th cent.), “laws are established when they are promulgated.”
Given what he’s said about the rational (and therefore objective and universal) nature of law, it follows that laws that remain unpromulgated can’t be objective, and therefore can’t be law. Gratian is correct, in other words. If law is a “rule and measure,” Aquinas argues, then it must be applied in some way in order to regulate and measure. The promulgation is the application of the yardstick to the situation. Without the promulgation, the yardstick is only leaning in the corner, not doing anything.
Aquinas goes on to note that promulgation is not only functionally necessary for law, it’s also part of the nature/essence/definition. He puts all these four articles together thus:
Law is nothing other than “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” That is, law is rational, implying also objective and universal; law is properly made by the sovereign, not by private interests; law is for the common good, implying that partisan laws are unjust, along with various forms of discriminatory laws; and law must be promulgated.
From this, his replies to the objections are fairly obvious.
Again, remember that his use of terms can be a bit different than ours, especially in things like “common good.”
Discussion: What do you think about this definition of law? Does it work today? If not, what would be a better definition? Do the laws we make at national, state, and local levels generally aim at this standard? If not, why not? What are the implications here for what we call “checks and balances”?