Jurisprudence of Catholic canon law

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The jurisprudence of Catholic canon law is the complex of legal theory, traditions, and interpretative principles of

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

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

]

Sources of law

The term source or fountain of canon law (fons juris canonici) may be taken in a twofold sense. First, it can indicate the formal cause of the existence of a law (fontes essendi), such as canon law or lawgivers. Second, it can describe the material channel through which laws are handed down and made known (fontes cognoscendi), such as sources of history.[12]

Fontes essendi

The fontes essendi (Latin: "sources of being") include the following legislators:^[12]

• Jesus Christ, whom the Catholic Church believes to be her divine founder, is the original source of divine laws laid down chiefly in the Constitution of the Church, and next to Him the Apostles as lawgivers either of divine or human laws, viz.: as inspired or merely human instruments.^[12]
• The Roman Pontiff, either alone or in unison with a general council, as endowed with the supreme and ordinary power of enacting laws for the universal church.^[12]
• The Bishops^[12] for their respective particular churches, unless competency is reserved to another authority, such as the bishops' conference or the Holy See.

Customs, too, must be considered as a source of law, universal as well as particular.^[12]

Whether the natural law can be called a source of canon law depends on the formal declaration of the supreme authority and through determinationes; for the natural law as such—its extent is very uncertain—cannot be called a homogeneous source of canon law except it has been declared such by the highest authority.^{[note 1]} Besides its range being very uncertain, the natural law is an objective sentiment, or a dictate of reason.^[12]

Fontes cognoscendi

The fontes cognoscendi (Latin: "sources of knowing") are depositaries collecting the laws enacted in the course of centuries. They may also be considered as the channels through which the river and rivulets of legal enactment flow and are preserved. They do not constitute the law as such, but rather point out where it may be found. Among these sources are Holy Scripture and the decrees of popes and councils; also, in a measure, custom, inasmuch, namely, as it proves the existence and continuity of laws unwritten and perhaps forgotten.^[12]

Jus vigens

The term jus vigens (Latin: "living law") means all the currently-in-effect laws of the church, primarily the 1983 Code of Canon Law,^[13][14] the Code of Canons of the Eastern Churches,^[13] and Praedicate evangelium.

In the apostolic constitution Sacri Canones, by means of which he promulgated the Code of Canons of the Eastern Churches, Pope 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'^[15]

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

Codes of canon law

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Custom

A custom is, in other words, 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 2]

In order for custom to become a source of law, it must be approved by the competent legislator. Custom in canon law is not simply created by the people through their constant performance of a certain act, 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

, but by the direct will of Christ.

Decrees

A decree (

within their sphere of authority.

Motu proprio

A motu proprio is a document issued by the pope on his own initiative and personally signed by him.^[17] A motu proprio may be addressed to the whole Church, to part of it, or to some individuals.^[17] 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.^[18]

Apostolic constitutions

An apostolic constitution is the highest level of

.

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"); the Holy See is content to publish the Latin alone, as Latin is the official language of canon law.^[19]

Lex and jus

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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

.

Ius is typically understood in contradistinction to lex. The Early Church, which existed more or less under persecution in the

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 AD. Laws formalized as lex after 325 AD 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 AD, 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

In

There must be a "just and reasonable cause" 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. 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.[26] If it is uncertain as to whether a sufficiently "just and reasonable cause" exists, the dispensation is both legal and valid.^[27] 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,

.

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

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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.^[28] Without having been promulgated, the canonical law in question has no legal effect, since promulgation is "an essential factor of legislation"^[29] and "an absolute condition for the effectiveness of a law".^[28] Philosophically it is a matter of dispute whether promulgation is of the essence of a law.^{[note 6]} 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,^[30] 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" of canon law. For the purposes of canonical jurisprudence, promulgation is equivalent to publication,^[31] 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.^[32]

Revocation

The act of recalling or annulling, the reversal of an act, the recalling of a grant, or the making void of some deed previously existing. This term is of wide application in canon law. Grants, laws, contracts, sentences, jurisdiction, appointments are at times revoked by the grantor, his successor or superior according to the prescriptions of law. Revocation without just cause is illicit, though often valid. Laws and customs are revoked when, owing to change of circumstances, they cease to be just and reasonable. Concordats (q.v.) are revocable when they redound to the serious injury of the Church. Minors and ecclesiastical institutions may have sentences in certain civil trials set aside (Restitutio in integrum). Contracts by which ecclesiastical property is alienated are sometimes rescindable. A judge may revoke his own interlocutory sentence but not a definitive judicial sentence. Many appointments are revocable at will; others require a judicial trial or other formalities.

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.^[33] In Latin canon law, the vacatio legis is three calendar months after promulgation for universal laws,^[34][35] and one calendar month after promulgation for particular laws,^[36] unless the law itself establishes a longer or shorter period of time.^[34][35][36] The legislator of the law can stipulate a longer or shorter time of vacatio than that which is stipulated generally.^[31]

Valid but illicit

The term "valid but illicit" (or "valid but illegal") refers to an unauthorized celebration of a

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

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

. 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

Derogation is the partial suppression of a law,

in that it affects everyone, whereas dispensation applies to specific people affected by the law.

Obrogation

Obrogation is a term in the jurisprudence of

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

Months are computed according to the calendar from the date of publication.^[31] A "canonical month" (in contradistinction to a "calendar month") is a period of 30 days,^[46] 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.^[34] 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

Notes

1. ^ J. Laurentius, Institutiones Juris Bed., 1903, p. 9; that the natural law should be cautiously used in Canon Law. Schenkl, I. c- t 37, remarks
2. ^ (Cap. Consuetudo v, Dist. I.)
3. ^ Pope Siricius speaks (Ep. i, ad Himer., c. ii) of the decreta generalia of Pope Liberius.
4. ^ Unlike the English idiom "dispense with", the canonical idiom is "dispense from"
5. ^ 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".
6. ^ 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

• Abbo, John A., and Jerome D. Hannan, The Sacred Canons: A Concise Presentation of the Current Disciplinary Norms of the Church, Volume I (Canons 1-869 [1917 CIC]) (St. Louis, MO: B. Herder Book Co., 1952).
• Beal, John P., James A. Coriden, & Thomas J. Green. New Commentary on the Code of Canon Law. New York: Paulist Press, 2000.
• Code of Canons of the Eastern Churches, Latin-English Edition, New English Translation (Canon Law Society of America, 2001).
• 1983 Code of Canon Law. The IntraText Digital Library
• Canon L. Socy. Gr. Brit. & Ir., The Canon Law Letter and Spirit: A Practical Guide to the Code of Canon Law (Gerard Sheehy et al. eds., Liturgical Press 1995).
• Coriden, James A. An Introduction to Canon Law, revised edn. New York: Paulist Press, 2004.
• Coriden, James A., Thomas J. Green, Donald E. Heintschel, eds. The Code of Canon Law: A Text and Commentary. New York: Paulist Press, 1985. Commissioned by the Canon Law Society of America.
• De Agar, Joseph T. Martin. A Handbook on Canon Law, 2nd edn. Midwest Theological Forum, 2007.
• Della Rocca, Fernando. Manual of Canon Law (Milwaukee: The Bruce Publishing Company, 1959). Translated by the Rev. Anselm Thatcher, O.S.B.
• De Meester, A. Juris Canonici et Juris Canonico-Civilis Compendium: Nova Editio, Ad Normam Codicis Juris Canonici—Tomus Primus (Brugis: Societatis Sancti Augustini, 1921).
• Häring, Bernard. The Law of Christ, Volume I: General Moral Theology. Trans. by Edwin G. Kaiser, C.PP.S. Westminster, Maryland: The Newman Press, 1961.
• Huels, John M. The Pastoral Companion: A Canon Law Handbook for Catholic Ministry, 5th edn. Midwest Theological Forum, 2016.
• Metz, René. What is Canon Law? (New York: Hawthorn Books, 1960). Translated from the French by Michael Derrick.
• Spiteri, Laurence J. Canon Law Explained: A Handbook for Laymen, rev'd & updated edn. Sophia Institute Press, 2014.
• Taylor, Justin. Canon Law in the Age of the Fathers (paper 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).
• 1911 Encyclopædia Britannica "Dispensation". Encyclopædia Britannica (11th ed.). 1911.
•  This article incorporates text from a publication now in the public domain: Jules Besson (1913). "Dispensation". In Herbermann, Charles (ed.). Catholic Encyclopedia. New York: Robert Appleton Company..
  I. Dispensations in General:
  SUAREZ, De legibus (Naples, 1882), Bk. VI, x sqq., and Opera Omnia (Paris, 1856), VI; PYRRHUS CORRADIUS, Praxis dispensationum apostolicarum (Venice, 1699); KONINGS-PUTZER, Commentarium in facultates apostolicas (New York, 1898), pt. I; the commentators on the Decretals, especially SCHMALZGRUEBER, Jus ecclesiasticum universale (Rome, 1843), Bk. I. tit. ii; WERNZ, Jus decretalium (Rome, 1905), I, tit. iv, 138; VON SCHERER, Handbuch des Kirchenrechts (Graz, 1898), I, 172; HINSCHIUS. System d. kath. Kirchenr. (Berlin, 1869), I. 744, 789; the moral theologies, under the treatise De legibus, particularly ST. ALPHONSUS LIGUORI, Theologia Moralis (Rome, 1905), I, iv, Dub. 4; D'ANNIBALE, Summula Theologiœ Moralis (Rome, 1908), I, tr. iii, 220; BALLERINI, Opus Morale (Prato, 1889), I, 363; OJETTI, Synopsis rerum moralium et juris pontificii (Rome, 1904), s. v. Dispensatio; THOMASSIN, Ancienne et nouvelle discipline de l'Eglise touchant les bénéfices (Paris, 1725), II, p. II, 1, 3, xxiv-xxix; STIEGLER, Dispensation, Dispensationwesen, und Dispensationsrecht in his Kirchenrecht (Mainz, 1901). I, and in Archiv f. kath. Kirchenr., LXXVII, 3; FIEBAG, De indole ac virtute dispensationum secundum principia jur. canonici (Breslau, 1867).
  II. Matrimonial Dispensations:
  PYRRHUS CORRADIUS, op. cit.; DE JUSTIS, De dispens. matrim. (Venice, 1769); GIOVINE, De dispens. matrim. (Naples, 1863); PLANCHARD, Dispenses matrim. (Angoulème, 1882); FEIJE, De imped. et dispens. matrim. (Louvain, 1885); ZITELLI, De dispens. matrim. (Rome, 1887); VAN DE BURGT, De dispens. matrim. (Bois-le-Duc, 1865); POMPEN, De dispens. et revalidatione matrim. (Amsterdam, 1897); ROUSSET, De sacramento matrimonii (Saint-Jean de Maurienne, 1895), IV, 231; KONINGS-PUTZER, Op. cit., 174 sqq., 376 sqq.; SANCHEZ, De s. matrimonii sacramento (Viterbo, 1739), Bk. VIII; GASPARRI, Tract. canonicus de matrimonio (Paris, 1892), I, iv, 186; MANSELLA, De imped. matrim. (Rome, 1881), 162; LEITNER, Lehrb. des kath. Eherechts (Paderborn, 1902), 401; SCHNITZER, Kath. Eherecht (Freiburg, 1898), 496; SANTILEITNER, Prœlectiones juris canonici (Ratisbon, 1899), IV, appendix I; WERNZ, Jus Decretalium (Rome, 1908), IV, tit. xxix FREISEN Geschichte des kanon. Eherechts bis zum Verfall der Glossenlitteratur (Tübingen, 1888), and in Archiv für kath. Kirchenr., LXXVII, 3 sqq., and LXXVIII, 91; ESMEIN, Le mariage en droit canonique (Paris, 1891), II, 315; ZHISMAN, Das Eherecht der orient. Kirche (Vienna, 1864), 190, 712.
•  This article incorporates text from a publication now in the public domain: A. Van Hove (1913). "Promulgation". In Herbermann, Charles (ed.). Catholic Encyclopedia. New York: Robert Appleton Company.ZACCARIA, De varis eccles. præsertim latinæ in promulgandis sacris constitutionibus disciplina in De rebus ad historiam atque antiquitates ecclesiæ pertinentibus dissertationes latinæ, II (Fulginia, 1781), xi; BOUIX, De principiis juris canonici (Paris, 1852), 196 sq.; BOUQUILLON, Theol. moral. fundamentalis (Brussels, 1890), 270 sq.; CREAGH, The Promulgation of Pontifical Law in Cath. Univ. Bull., XV (Washington, 1907), 23 sq.; SIMIER, La promulgation des lois ecclés. in Revue augustinienne, XV (Louvain, 1909), 154 sq.
•  This article incorporates text from a publication now in the public domain: Andrew B. Meehan (1913). "Revocation". In Herbermann, Charles (ed.). Catholic Encyclopedia. New York: Robert Appleton Company.