At the end of a recent entry here, I asked whether the legal system isn’t perhaps just “a small circle of people on the playground making up new rules for the basketball game going on nearby, then waiting with grins for someone to do something wrong without even knowing it.” Well, no, it’s not. In fact, Blackstone, that authoritative English judge, directly addressed this “small circle beside the basketball game” idea. He said that “a bare resolution, confined in the breast of the legislator, without manifesting itself by fome external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it.” In other words, the people in the small circle can’t actually make a new rule unless they tell everybody else about it.

But then we have to wonder how much effort the little circle has to go to. If they just whisper it, is that enough? Once upon a time, apparently, the King of England would command all of the country’s sheriffs to travel all around their jurisdictions proclaiming each new act of parliament. Today in the U.S. and Canada, most people (97.0% and 99.9% respectively, according to a United Nations study) can read, and our governments promulgate law mainly by printing and then publishing it. This is not enough—and the government itself recognizes this in many cases, making mighty promulgation efforts with some important laws, such as the tax laws.

Yet, still—and this is no different than in the sheriff-crier days—the enormous part of the law that is the “common law” is left essentially unannounced. “Caligula published his laws in small characters; but still he published them: he hung them up high, but still he hung them up,” Jeremy Bentham railed, about a decade after Blacktone finished publishing his Commentaries, “English judges neither hang up their laws, nor publish them.” Today, even though we have a more extensive system of official and unofficial reporters publishing many appellate decisions, hardly anybody not dealing with law as a career appreciates the authority of judge-made law or would know how to decipher it if they did. And that’s not to mention courts’ now commonplace practice of releasing unpublished, often unciteable opinions.

I don’t know what to say about it, actually. Various drafts of this entry have been stewing on my desktop for several weeks now, and I haven’t identifed a meaningful direction to take them in. Promulgation is a suprisingly sweeping, fundamental, and unbelievably ignored topic. And I’m finding out that it is to law kind of as metaphysical cosmology is to philosophy—it is a discrete topic, but one that implicates almost everything else in the field. So, I’ll have to only mention it, by way of this entry, and move on.