Jurisprudence of canon law

This article is about the jurisprudence of Catholic canon law. For an overview of the history and system of Catholic canon law, see Canon law (Catholic Church).

This article is part of the series:
Jurisprudence of Canon Law
Canon Law Task Force

The jurisprudence of canon law is the complex of legal theory, traditions, and interpretative principles of Catholic canon law. In the Latin Church, the jurisprudence of canon law was founded by Gratian in the 1140s with his Decretum.[1] In the Oriental canon law of the Eastern Catholic Churches, Photios holds a place similar to that of Gratian for the West.[2]

Much of the legislative style was adapted from that of Roman Law especially the Justinianic Corpus Juris Civilis.[3][4] As a result, Roman ecclesiastical courts tend to follow the Roman Law style of continental Europe with some variation. After the 'fall' of the Roman Empire and up until the revival of Roman Law in the 11th century canon law served as the most important unifying force among the local systems in the Civil Law tradition.[5] The canonists introduced into post-Roman Europe the concept of a higher law of ultimate justice, over and above the momentary law of the state.[6]

The Catholic Church developed the inquisitorial system in the Middle Ages.[7] This judicial system features collegiate panels of judges and an investigative form of proceeding,[8] in contradistinction to the adversarial system found in the common law of England and many of her former colonies, which utilises concepts such as juries and single judges.

The institutions and practices of canon law paralleled the legal development of much of Europe, and consequently both modern civil law and common law[9] (canon law having a significant effect upon the development of the system of equity in England)[10] bear the influences of canon law. Edson Luiz Sampel, a Brazilian expert in canon law, says that canon law is contained in the genesis of various institutes of civil law, such as the law in continental Europe and Latin American countries. Sampel explains that canon law has significant influence in contemporary society.

Sources of law

The primary canonical sources of law are the 1983 Code of Canon Law,[11][12] the Code of Canons of the Eastern Churches,[11] and Pastor Bonus. In the apostolic constitution Sacri Canones, by means of which he promulgated the Code of Canons of the Eastern Churches, Pope St. John Paul II stated

By the publication of this Code, the canonical ordering of the whole Church is thus at length completed, following as it does...the "Apostolic Constitution on the Roman Curia" of 1988, which is added to both Codes as the primary instrument of the Roman Pontiff for 'the communion that binds together, as it were, the whole Church'[13]

Other sources include apostolic constitutions, motibus propriis, and particular law.

Codes of canon law

Custom

Main article: Custom (canon law)

Custom in Catholic canon law is the repeated and constant performance of certain acts for a defined period of time, which, with the approval of the competent legislator, thereby acquire the force of law.[14] A custom is an unwritten law introduced by the continuous acts of the faithful with the consent of the legitimate legislator.

Custom may be considered as a fact and as a law. As a fact, it is simply the frequent and free repetition of acts concerning the same thing; as a law, it is the result and consequence of that fact. Hence its name, which is derived from consuesco or consuefacio and denotes the frequency of the action.[note 1]

In order for custom to become a source of law, it must be approved by the competent legislator.[14] Custom in canon law is not simply created by the people through their constant performance of a certain act,[14] but it is the constant performance of a certain act, with the intention of making a custom, which is approved by the competent legislator, thereby acquiring the force of law. This is because of the Catholic ecclesiological teaching on the constitution of the Catholic Church,[14] which states that Christ constituted the Church by divine delegation of power to the hierarchical authorities; the Church was not created by the consent of the governed, but by the direct will of Christ.

Decrees

Main article: Decree (canon law)

A decree (Latin: decretum, from decerno, "I judge") is, in a general sense, an order or law made by a superior authority for the direction of others. In the usage of the canon law of the Catholic Church, it has various meanings. Any papal Bull, Brief, or Motu Proprio is a decree inasmuch as these documents are legislative acts of the Holy Father. In this sense the term is quite ancient.[note 2] The Roman Congregations were formerly empowered to issue decrees in matters which come under their particular jurisdiction, but were forbidden from continuing to do so under Pope Benedict XV in 1917. Each ecclesiastical province, and also each diocese may issue decrees in their periodical synods within their sphere of authority.

Motu prioprio

Main article: Motu proprio

A motu proprio is a document issued by the Pope on his own initiative and personally signed by him.[15] A motu proprio may be addressed to the whole Church, to part of it, or to some individuals.[15] A document issued motu proprio has its legal effect even if the reasons given for its issuance are found to be false or fraudulent, a fact which would normally render the document invalid. Its validity is based on its issuance by the pope by his own initiative, not upon the reasons alleged.

The first motu proprio was promulgated by Pope Innocent VIII in 1484. It continues to be a common form of Papal rescripts, especially when establishing institutions, making minor changes to law or procedure, and when granting favours to persons or institutions.[16]

Apostolic constitutions

An apostolic constitution is the highest level of decree issued by the Pope. The use of the term constitution comes from Latin constitutio, which referred to any important law issued by the Roman emperor, and is retained in church documents because of the inheritance that canon law received from Roman law.

By their nature, apostolic constitutions are addressed to the public. Generic constitutions use the title apostolic constitution, and treat on solemn matters of the church, such as the promulgation of laws or definitive teachings. The forms dogmatic constitution and pastoral constitution are titles sometimes used to be more descriptive as to the document's purpose. Apostolic constitutions are issued as papal bulls because of their solemn, public form.

Language of canon law

Translation of Latin originals

In general, the Holy See does not give its assent to translations of the Latin originals (so-called "'authentic' translations".[17]); the Holy See is content to publish the Latin alone, as Latin is the official language of canon law.[17]

Lex and jus

Canon law incorporates two main terms that are translated in English as "law": lex and jus (or ius). Various canonical texts use one or both of the terms in varying contexts.

Jus

In the Canon Law of the Catholic Church, ius refers to custom, practice or "Tradition." The early law of the Church, especially prior to the First Council of Nicaea in 325 a.d., was largely unwritten, at least in the form of law, but existed in the practices, customs and teachings of the early Christian community. What largely was communicated generation to generation was an oral tradition passed from the apostles to the Bishops, and from Bishops and priests to the faithful through their preaching and way of life. Some of what is included in the term ius would be interpretations of particular scriptural passages, theological understandings of the liturgy and liturgical practices themselves. Evidence for the content of this oral tradition of teaching is found among the writings of the Early Church Fathers as well as in the later legislation of the Church or lex.

Ius is typically understood in contradistinction to lex. The Early Church, which existed more or less under persecution in the Roman Empire prior to Constantine I in the early fourth century, was not in a position to gather large councils for the purpose of legislation or theological clarification prior to 325 a. d. Laws formalized as lex after 325 a.d. are sometimes falsely interpreted as having a "new" content. This is usually not the case. Most Church legislation is either a development of prior teaching, or practice or re-affirmation of teaching or practice unless otherwise expressly stated.

Lex

Lex is Latin for one sense of the English term, law. In the Canon Law of the Catholic Church, lex refers to law which has been formulated in written form and promulgated by competent authority. While this is the usual sense of "law" in modern legal systems, the legal system of the Catholic Church includes another form of law, ius, which refers to the oral teachings, practices, customs, theological understandings of liturgy and liturgical practices generally prior to the Council of Nicea in 325 a.d., when written legislation became the normative means of communicating Church law.

"Lex" takes several forms:

  • Decrees or canons of ecumenical councils.
  • Decrees or canons of regional Church councils or synods (regionally binding)
  • Decrees (or decretals) of the Pope.
  • Canon Law (binding either universally or by rite)

It is important to understand that much of Church legislation (unless otherwise stated) is either a development of earlier law or a restatement of earlier law, particularly law contained in the oral tradition from apostolic teaching, or ius.

Principles of law

Dispensation

In the canon law of the Roman Catholic Church, a dispensation is the exemption from the immediate obligation of law in certain cases.[18] Its object is to modify the hardship often arising from the rigorous application of general laws to particular cases, and its essence is to preserve the law by suspending its operation in such cases.[19] Since laws aimed at the good of the entire community may not be suitable for certain cases or persons, the legislator has the right (sometimes even the duty) to dispense from[note 3] the law.[18] Dispensation is not a permanent power or a special right as in privilege.[18] If the reason for the dispensation ceases entirely, then the dispensation also ceases entirely.[20][21][22] If the immediate basis for the right is withdrawn, then the right ceases.[20]

In canonical jurisprudence, the dispensing power is the corollary of the legislative.[19] In the decretal Proposuit, Innocent III proclaimed that the pope could, if circumstances demanded, dispense from canon law, de jure, with his plenitude of power, basing his view on the principle princeps legibus solutus est (the prince is not bound by the laws). The power of dispensing lies with the original lawgiver, with his successors or with his superiors, and with those persons to whom they have delegated this right. Such a dispensation is not, strictly speaking, legislative, but rather a judicial, quasi-judicial or executive act. It is also, of course, subject to the proviso that his jurisdiction to dispense with laws was limited to those laws which were within his jurisdiction or competence. Since there is no superior above the pope, he can therefore dispense from all canonical laws: universal laws introduced by himself, his predecessors or general councils, and particular laws enacted by plenary and provincial councils, bishops and similar prelates. The pope can dispense from canon law in all cases that are not contrary to Divine law — except in the case of vows, espousals and marriages ratum sed non consummatum, or valid and consummated marriages of neophytes before baptism. In doubtful cases, however, he may decide authoritatively as to the objective value of the doubt.As a general rule the pope delegates his powers to the various congregations of the Roman Curia which are charged with granting dispensations in matters within the sphere of their competence.[23]

There must be a "just and reasonable cause"[24] for granting a dispensation. The judgement regarding what is "just and reasonable" is made based upon the particular situation and the importance of the law to be dispensed from.[24] If the cause is not "just and reasonable" then the dispensation is illegal and, if issued by someone other than the lawgiver of the law in question or his superior, it is also invalid.[24] If it is uncertain as to whether a sufficiently "just and reasonable cause" exists, the dispensation is both legal and valid.[25] Some clauses of the dispensation rescript can constitute conditions sine quâ non for the validity of the dispensation.

Matrimonial dispensation

A matrimonial dispensation is the relaxation in a particular case of an impediment prohibiting or annulling a marriage. Matrimonial dispensations can be either to allow a marriage in the first place, or to dissolve one. It may be granted: (a) in favour of a contemplated marriage or to legitimize one already contracted; (b) in secret cases, or in public cases, or in both; (c) in foro interno only, or in foro externo (the latter includes also the former). Power of dispensing in foro interno is not always restricted to secret cases (casus occulti). These expressions are by no means identical. When a matrimonial impediment is common to both parties the bishop, in dispensing his own subject, dispenses also the other.

By virtue of his power of jurisdiction,[note 4] a bishop can dispense from those prohibent impediments of ecclesiastical law which are not reserved to the pope, and even from such reserved impediments under certain conditions. He may also, under certain conditions, dispense from diriment impediments.

Sufficient causes for matrimonial dispensations are divided into canonical causes, i. e. classified and held as sufficient by the common law and canonical jurisprudence, and reasonable causes, i. e. not provided for nominally in the law, but deserving of equitable consideration in view of circumstances or particular cases.

Matrimonial nullity

Promulgation

Promulgation is the act by which the legislator manifests to those subject to his jurisdiction the decision that he has made and makes known to them his intention to bind them to the observance of his law.[26] Without having been promulgated, the canonical law in question has no legal effect, since promulgation is "an essential factor of legislation"[27] and "an absolute condition for the effectiveness of a law".[26] Philosophically it is a matter of dispute whether promulgation is of the essence of a law.[note 5] It seems indisputable that the essential element of a law is the will of the legislator, but it is clear that the legislator should make known his will and intention in one way or another. This manifestation is the promulgation of the law, which is not necessarily distinct from the very elaboration of the law, provided that this takes place by external acts. Once promulgation takes place, a canonical law acquires its last "essential condition" and takes immediate effect,[28] subject to the vacatio legis imposed by universal law, or by the particular legislator issuing a law (see section below). Promulgation is a "formal and fundamental element"[29] of canon law. For the purposes of canonical jurisprudence, promulgation is equivalent to publication,[29] although the promulgation of a law must not be confounded with its publication, the object of the first being to make known the will of the legislator, of the second to spread the knowledge of legislative enactments among subjects bound to observe them.[30]

Vacatio legis

Main article: Vacatio legis

In principle, a law becomes binding from the time of its promulgation. But because there are often reasons that the immediate efficacy of a law would be detrimental to those upon whom it enjoins, the legislator often orders a delay—vacatio—in the law's applicability.[31] In Latin canon law, the vacatio legis is three calendar months after promulgation for universal laws,[32][33] and one calendar month after promulgation for particular laws,[34] unless the law itself establishes a longer or shorter period of time.[32][33][34] The legislator of the law can stipulate a longer or shorter time of vacatio than that which is stipulated generally.[29]

Valid but illicit

Main article: Valid but illicit

The term "valid but illicit" (or "valid but illegal") refers to an unauthorized celebration of a sacrament that nevertheless has effect. While validity is presumed whenever an act is placed "by a qualified person and includes those things which essentially constitute the act itself as well as the formalities and requirements imposed by law for the validity of the act",[35][36] Roman Catholic canon law also lays down rules for lawful placing of the act.

Principles of legal interpretation

Canonists have formulated interpretive rules for the proper interpretation of canonical laws. An authentic interpretation is an official interpretation of a statute issued by the statute's legislator. An authentic interpretation has the force of law.

Authentic interpretation

Besides the Pope, who has plenary legislative power, there are several other legislative authorities in the Roman Catholic Church with varying degrees of particular legislative power. Primary examples are diocesan bishops and their equivalents, episcopal conferences, and particular councils.[37] Any of these legislators can issue authentic interpretations of their laws[38] and their predecessor's laws.[39] Legislators also can entrust the power to authentically interpret their own laws to someone else.[40] For the 1983 Code of Canon Law, the Code of Canons of the Eastern Churches, and other papal laws, the pope has delegated the authority to issue authentic interpretations to the Pontifical Council for Legislative Texts.[41] The following table contains the authentic interpretations issued by that dicastery (with Pontifical approval).

Magisterial interpretation

When it is not possible for a law to be authentically interpreted, recourse must be had to what is called magisterial, or doctrinal, interpretation, for which rules of law have been formulated. The words of a law must be understood according to their usual signification, unless it is certain that the legislator intended them to be taken in another sense, or the rules of law dictate another interpretation. In all interpretations, however, the meaning of the words is to be preferred which favours equity rather than strict justice. The provisions of a previous statute are not presumed to be changed beyond the express meaning of the words of a new law. No words of a law are ever presumed to be superfluous. In interpreting a law the words must be considered in their context. When the words of a law are doubtful the presumption is in favour of the subjects, not of the lawgiver.

Derogation

Main article: Derogation

Derogation is the partial suppression of a law,[42] as opposed to abrogation—total abolition of a law by explicit repeal—and obrogation—the partial or total modification or repeal of a law by the imposition of a later and contrary one. Derogation differs from dispensation in that it applies to the law, where dispensation applies to specific people affected by the law.

Obrogation

Main article: Obrogation

Obrogation is a term in the jurisprudence of canon law that refers to the enacting of a contrary law that is a revocation of a previous law.[43] It may also be the partial cancellation or amendment of a law, decree, or legal regulation by the imposition of a newer one. Obrogation should not be confused with abrogation, which is the explicit repeal of a law, in whole or in part.

Computation of time

Main article: Computation of time

Months are computed according to the calendar from the date of publication.[29] A "canonical month" (in contradistinction to a "calendar month") is a period of 30 days,[44] while a "calendar month" is a continuous month. The vacatio legis is computed according to the calendar; for example, if a law is promulgated on 2 November, and the vacatio legis is 3 months, then the law takes effect on 2 February.[32] So a universal law has a vacatio legis of approximately 90 days—3 months taken according to the calendar—while a particular law has a vacatio legis of approximately 30 days—1 month taken according to the calendar—unless specified to the contrary.

References

  1. ↑ Dr. Kenneth J. Pennington, Ph.D., CL701, CUA School of Canon Law, "History of Canon Law, Day 1", around 0:25:30, accessed 8-15-2014
  2. ↑ Fr. Justin Taylor, essay "Canon Law in the Age of the Fathers" (published in Jordan Hite, T.O.R., & Daniel J. Ward, O.S.B., "Readings, Cases, Materials in Canon Law: A Textbook for Ministerial Students, Revised Edition" (Collegeville, MN: The Liturgical Press, 1990), p. 61
  3. ↑ NYTimes.com, "Pope to Codify Canon Law", 1-Apr-1904, accessed 25-June-2013
  4. ↑ McCormick, Anne O'Hare. Vatican Journal, pg. 44
  5. ↑ Comparative Legal Traditions, pg. 43
  6. ↑ Wormser, The Story of the LAW, pg. 189
  7. ↑ TheFreeDictionary.com, accessed June-28-2013
  8. ↑ Fr. Lawrence DiNardo, "A Zenit Daily Dispatch—Going to Court in the Church: Canon Lawyer Explains Penal Procedures" (17 June 2010); accessed at EWTN.com June-10-2013
  9. ↑ Rommen, Heinrich A., Natural Law, pg. 114
  10. ↑ Friedman, Lawrence M., American Law, pg. 70
  11. 1 2 Dr. Edward Peters, CanonLaw.info, accessed June-9-2013
  12. ↑ Rev. James Socias (gen. edit.), Our Moral Life in Christ. (Chicago: Midwest Theological Forum, 2003), 84.
  13. ↑ Code of Canons of the Eastern Churches, Latin-English Edition, New English Translation (Canon Law Society of America, 2001), page xxv
    Cf. Pastor Bonus n. 2
  14. 1 2 3 4 Metz, What is Canon Law?, pg. 39
  15. 1 2 Oxford Dictionary of the Christian Church (Oxford University Press 2005 ISBN 978-0-19-280290-3), s.v. motu proprio
  16. ↑ Catholic Encyclopedia, s.v. Motu Proprio
  17. 1 2 Coriden, James A., et al., The Code of Canon Law: A Text and Commentary, pg. 30 (commentary on Canon 8).
  18. 1 2 3 The Law of Christ Vol. I, pg. 284
  19. 1 2  One or more of the preceding sentences incorporates text from a publication now in the public domain: Chisholm, Hugh, ed. (1911). "Dispensation". Encyclopædia Britannica 8 (11th ed.). Cambridge University Press. pp. 313–315.
  20. 1 2 The Law of Christ Vol. I, pg. 285
  21. ↑ Canon 93, 1983 Code of Canon Law, accessed June-5-2013
  22. ↑ NewAdvent.org "Dispensation", accessed June-5-2013
  23. ↑ "What is Canon Law?" pg. 47
  24. 1 2 3 Canon 90 §1, 1983 Code of Canon Law; accessed June-5-2013
  25. ↑ Canon 90 §2, 1983 Code of Canon Law; accessed June-5-2013
  26. 1 2 Metz, René. What is Canon Law?, pg. 41.
  27. ↑ Della Rocca, Manual of Canon Law, pg. 56.
  28. ↑ Abbo & Hannan, Sacred Canons, pg. 16 (commentary on canon 8, 1917 CIC)
  29. 1 2 3 4 Della Rocca, Fernando. Manual of Canon Law, pg. 70.
  30. ↑ Catholic Encyclopedia 1913, "Promulgation".
  31. ↑ Metz, What is Canon Law?, pg. 42
  32. 1 2 3 De Meester, Juris Canonici Compendium, v. 1, pg. 176.
  33. 1 2 Canon 8 §1, 1983 Code of Canon Law
  34. 1 2 Canon 8 §2
  35. ↑ Code of Canon Law, canon 124 §1
  36. ↑ Apostolicae curae, "Whenever there is no appearance of simulation on the part of the minister, the validity of the sacrament is sufficiently certain"
  37. ↑ Canon L. Socy. Gr. Brit. & Ir., The Canon Law Letter and Spirit: A Practical Guide to the Code of Canon Law ¶ 46, at 15, 15 n. 2 (Gerard Sheehy et al. eds., Liturgical Press 1995).
  38. ↑ Codex Iuris Canonici [CIC] canon 16 § 1; Codex Canonum Ecclesiarum Orientalium [CCEO] canon 1498.
  39. ↑ The Canon Law Letter and Spirit ¶ 46, at 15 (Rev. Augustine Mendonça, JCD).
  40. ↑ CIC canon 16 § 1; CCEO canon 1498 § 1.
  41. ↑ John Paul II, ap. con. Pastor Bonus art. 155, 80 Acta Apostolicae Sedis 841 (1988).
  42. ↑ Manual of Canon Law, pg. 69
  43. ↑ Della Rocca, Manual, 69.
  44. ↑ Canon 202 §1, 1983 Code of Canon Law

Notes

  1. ↑ (Cap. Consuetudo v, Dist. I.)
  2. ↑ Pope Siricius speaks (Ep. i, ad Himer., c. ii) of the decreta generalia of Pope Liberius.
  3. ↑ Unlike the English idiom "dispense with", the canonical idiom is "dispense from"
  4. ↑ The 1913 Catholic Encyclopedia original text says "By virtue of their [diocesan bishops] ordinary power (Jurisdiction)". Canon law has traditionally distinguished between the "Power of Order" and the "Power of Jurisdiction".
  5. ↑ The nature of promulgation in its relation to the nature of canon law is a matter of discussion among canonical writers. Some canonists hold that promulgation as such "enters the very essence of the law", (Abbo & Hannan, The Sacred Canons Vol. I, pg. 16) while Abbo & Hannan hold what they assert to be "the more probable opinion that promulgation is merely an extrinsic essential condition sine qua non."(The Sacred Canons Vol. I, pg. 16)

Bibliography

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