On the Promulgation of Law: Putting the “Public” in “Publication”

May 22, 2019   Joseph Kochanek

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Adam Liptak wrote recently for the New York Times about the legal controversy surrounding the attempt to freely distribute the Official Code of Georgia Annotated, which is copyrighted. In its decision about this case last year, the Eleventh Circuit denied that the annotations could be copyrighted, asserting that the annotations contained in the code are “an exercise of sovereign power,” and that “the People are the constructive authors of those official legal promulgations of government that represent an exercise of sovereign authority.” In so doing, they grounded their opinion in the concept of popular sovereignty.

An additional element of their ruling worthy of further consideration is that of the important role of promulgation in lawmaking. In order for the laws to work well, the laws must be known by those to whom they apply. This is supported by the two most famous political theorists to write about promulgation: Aquinas and Bentham. The public promulgation of laws makes complying with law easier, and that is a social good. Limitations on the public promulgation of law make complying with law harder. Lowering the cost of legal compliance is in the interest of society generally. It is not unreasonable for the state to charge fees to individuals for services, but the law is more than a service for individuals. The general observance of law is in the interest of all. Requiring people to pay money to know the law is in conflict with this interest, in addition to straining longstanding norms of popular sovereignty.

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