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- | ====== Book One ====== | + | {{keywords> |
- | General Norms | + | =====Book |
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+ | **Fundamental Code:** There was envisioned a fundamental code - but it was not completed or promulgated. | ||
+ | |||
+ | * Some argued Gospel is our fundamental law. But that isn't really law. | ||
+ | * Others argued the hierarchy in norms would make church more authoritarian. However, the opportunity was missed to have a good calling card for the church - not something buried in the General Norms. | ||
+ | * Even after promulgation for a long time there was the hope for lex ecclesia fundamentalis. | ||
+ | * Some said it is bad for ecumenism - but that cuts both ways. | ||
+ | * Old canon one: //Licet in Codice iuris canonici Ecclesiae quoque Orientalis disciplina saepe referatur, ipse tamen unam respicit Latinam Ecclesiam, neque Orientalem obligat, nisi de iis agatur, quae ex ipsa rei natura etiam Orientalem afficiunt// | ||
+ | |||
+ | **Canon 1 //Latin Code//** | ||
+ | The CIC governs only the Latin Rite, the CCEO is for eastern catholics (2% or 20M) | ||
+ | |||
+ | **Canon 2 // | ||
+ | * Liturgical Norms found in Liturgical books - Canon 2 shows the true flavor and scope of the CIC. Speaks of liturgical law without defining it. | ||
+ | * E.g. Two norms were issued after Vatican 2: (1970 and 1980). | ||
+ | * Canon 230 §2 Lay people can receive a temporary assignment to the role of lector in liturgical actions. Likewise, all lay people can exercise the roles of commentator, | ||
+ | * E.g. Canon 1112 says Laymen may assist at a marriage under two conditions: | ||
+ | * Instruction doesn' | ||
+ | |||
+ | **Canon 3 Diplomatic Agreements** | ||
+ | * Secular hierarchy - int'l law, national, local. | ||
+ | * E.g. Concordat is a treaty with Holy See. E.g. Pius VI Napoleon 1801 - part of public laws. 1929 Lateran agreements with Mussolini Villa Matalma Two corrupt politicians | ||
+ | * They consisted of three documents: | ||
+ | * A political treaty recognizing the full sovereignty of the Holy See in the State of Vatican City, which was thereby established. | ||
+ | * A concordat regulating the position of the Catholic Church and the Catholic religion in the Italian state. | ||
+ | * A financial convention agreed on as a definitive settlement of the claims of the Holy See following the losses of its territories and property. | ||
+ | * In the 1980s they were on the wane though there are new ones with eastern European countries. Some say EU should do a concordat with Holy See. But this would be an interesting exercise, especially with some protestant state church. E.g. appointment of bishops. 1917 code innovated the central church appoints bishops. This threw long traditions of interactions was rejected in its ideal. Some of these still exist. Lugano candidate bishop has to be a native, Italian speaker, another place submits 3 names, another place pope submits 3 names. | ||
+ | * Pragmatic - recognizes supremacy of Int'l law, but the church is a party and can limit, etc. | ||
+ | * Agreements. //pacta sunt servanda//. Agreements are observed. | ||
+ | * Concordat – general agreement; Protocol, accord, partial agreement. Catholic, not Vatican State is party to agreement. The principle can be extended to local Church agreements. | ||
+ | |||
+ | **Canon 4 Acquired Rights** | ||
+ | * E.g. 30 was former age to become bishop - 1983 made it 35, in the interim, the right was acquired and can't be taken away. | ||
+ | * Privileges are more shaky. Big part of canon law. Canons 76-84. E.g. Rota Hispanola as highest court. Structural inequality. Canon 85 relaxation of merely ecclesiastical law in a particular case; but consider Canon 90 requires a just and reasonable case. Systematic dispensation could become privileges or even abrogate law. E.g. Cistercian who collected privileges of his monastery, quite a list. | ||
+ | * Acquired Rights and privileges. No ex post facto laws. Law doesn’t revoke rights and privileges unless it expressly so states (which it only does @ c.510 – dis-joining parish to Ch. of canons.) e.g. requirement of JCL or JCD for some tribunal offices doesn’t affect grand-fathered officers. | ||
+ | * Natural rights cannot be abrogated. Legal rights (acquired rights) can be changed. | ||
+ | |||
+ | **Canon 5 Contrary Custom** | ||
+ | * Contrary Customs. Custom: practice introduced by the community. 6 expressly abrogated.Centenary: | ||
+ | |||
+ | **Canon 6 Prior Law** | ||
+ | * Previous Laws encompasses ius lesser juridical norms and statutes of institutes and societies. 1. 1917 code abrogated midnight 11/27/83. Validity of acts before that date are judged by the 1917 code. Laws implementing VCII not dependent on 1917 code, thus not abrogated. 2° laws contrary to the code abrogated whether universal is everybody; particular is local. 3° only AAS penal laws abrogated, particular laws remain unless specifically abrogated by the code. 4° non-technical meaning of disciplinary law: church as op-posed to divine. §2 ‘also’ means it’s not the only source. | ||
+ | * 1.2: //Lex specialis derogat generali// - special laws derogate the general. Now there is a new general law, but there may be reason, with the new general law to keep some of the special laws. | ||
+ | * 1.3: Penal law abrogated unless specifically taken up. Criminals need warning. 1313, retroactive law only if it is more favorable. Except 1399 - Administrative action allows punishment without law. | ||
+ | * 1.4: Matters completely reordered. hard to tell. E.g. Marriage but no divorce. Even with terrible marriage, it is a sign of God's love. Nullity looks at the moment of consent: force and fear, simulation, | ||
+ | * But there are possibility of dissolution ec. divorce: Matrimonum ratum sed non consummatum. Paris says valid with consent, Bologna says need consent. Alex III a Paris marriage (consent) can be dissolved, not a bologna marriage (consent +). | ||
+ | * Privilegium fidei - Pauline privilege for a long time. Canon 1143 The second marriage need not be with a baptised person. Not so pauline this privilege. Faith more important than indissolvability of marriage. | ||
+ | * Also present in 1917 code. In 20s and 30s scope of application enlarged - baptized non-Catholic, | ||
+ | * When the new code comes what do we do? It kept paulinum and remained silent about petrinum - was it reordered and if so what? Is it still being developed? | ||
+ | * 2 Law works from top to bottom, Custom works from bottom up. Previously there was more action at the bottom. | ||
+ | * Ius remonstrandi - Not in the code and not abrogated by Canon 6. Voice of the bottom was hear. Given shape during the pontificate of Alex III 1159-1181 Power of pope was limited at that time, bishops were also civilly powerful. Receptio legis also had to be taken into account. Alex issued a norm that wasn't followed. Since he couldn' | ||
+ | * Ordinatio Sacerdotalis 1994 JPII confirmed 1976 against priesthood of women. | ||
+ | * 1. NO it's divina constitutio - so can't happen. 3 chambers 2/3 majority of Church of England allowed women priesthood. He left out the word putatur - "it is" It took God a long time to make up his mind. | ||
+ | * 2. This is the end of the discussion - which of course started the discussion anew. | ||
+ | * Pree (of Munich) gives a list of examples of ' | ||
+ | * //Inter insignious// | ||
+ | * Biblica Commission 1975 said many good arguments for and many good arguments against. | ||
+ | * Can this be remonstrated - bishop solo makes choice. He doesn' | ||
+ | * Belgium / Flanders were more Catholic then sociologically. Today not a front page issue. Danieels: I don't want to choose between people here and Rome - but I choose for Rome, and I'll communicate the sadness of the people. "I can't sell it to the people here." | ||
+ | * Role of bishops today is more hitmen for the pope. When you have to reaffirm collegiality, | ||
+ | * Later we will see there are ways for custom to be tweaked. Moving of bishops from smaller diocese to larger. | ||
+ | |||
+ | ====Title I: Eccesiastical Laws==== | ||
+ | | ||
+ | |||
+ | Canons about the law, legislation, | ||
+ | |||
+ | **Canon 7 Establishment of Law** | ||
+ | * CL embraces three bodies of law: 1) Divine law: irreformable truths of faith, dogma and morals. D. positive L. – scripture and tradition. D. natural L. – based on the order of creation and human nature, discoverable by reason. 2) ecclesiastical (Catholics only), and 3) civil law. This Title concerns the second group. Human in origin, they can be modified. Many principles in this Title apply to other types of ius. C. 17 provides basis for extending to other general norms. I.e. these norms provide rules for interpretation of lex, which is parallel to ius. Leg and Exec norms similar, except that Exec can’t be contrary to, same or greater than Leg. | ||
+ | * c.7 Earlier draft: a general norm for the common good of some community given by a competent authority – to a community capable of receiving law. Legislators: | ||
+ | * 1. letter is Apostolic Constitution. | ||
+ | * Law is general and applies to all the community, precept applies only to a few. Canon law binds in conscience (unless excused) and in the external forum. Penalties are only prescribed if required by common good, otherwise, it is voluntary compliance. | ||
+ | * Law must be reasonable to achieve a useful purpose and serve the common good. Non-reception of law is the ignoring of law by a majority. Otherwise some might accept and others not, or accept for a time then reject (intrinsic cessation of law). Dispensation, | ||
+ | |||
+ | **Canon 8 Promulgation** | ||
+ | * Most times 3 months to applicability. | ||
+ | * Pope decides how to promulgate Universal Law. | ||
+ | * AAS - has all legislative texts. But not all in AAS is normative. | ||
+ | * It is necessary to say clearly it is a law or authentic interpretation. Promulgation can be oral, and need only be promulgated to those affected. | ||
+ | * Woestman - St. Paul's Canada - said locution contained authentic interpretation. But is wasn't stated and it was not stylistically legal. | ||
+ | * Stages of law: | ||
+ | - Preparation of text | ||
+ | - Approval of text and issuance | ||
+ | - Promulgation | ||
+ | - Grace period – force is suspended | ||
+ | - Law begins to bind. | ||
+ | * This canon treats step 3,4,5. Before the AAS was ASS: Acta Sanctae Sedis. Language of promulgation is official language, usually Latin. Sometimes, only promulgating document is in AAS, not the whole thing, e.g. liturgical docs. | ||
+ | * General executory decrees have to be promulgated. Documents for executors of laws need only be published to them. | ||
+ | * §2. Legislator usually publishes in diocesan paper, or whatever means. It is hard to find particular norms. There is a collection for Brussels in 1947. | ||
+ | - how can you identify a legislative text | ||
+ | - which are still in force | ||
+ | **Canon 9 Non-retroactivity** | ||
+ | General Law is not Retroactive. However, laws based on divine law are retroactive. Authentic interpretations are retroactive if they are merely declarative. Norms implementing law are retroactive. Ecclesiastical laws, to be retroactive, | ||
+ | * E.g. of retroactive law is penal law most favorable is applied: whether current law, or law at time of criminal act. Also, sanation sanatio in radice makes an act valid from its inception. | ||
+ | * E.g. Canon 1313 someone married in the 50s - all contract and institution. Husband marries only for contract and procreation. Procreation, | ||
+ | * Registered partnership - close to marriage, but not marriage (can't adopt) - not in the code. It was intended for homosexuals, | ||
+ | |||
+ | **Canon 10 Invalidating Laws ** | ||
+ | * //leges irritantes// | ||
+ | * Often it is illicit if you omit an action required. But the validity may still be in tact. | ||
+ | * Illicit and/or Invalid - E.g. Priest with difficulties - Rent a Priest - Bethune - married - attempted marriage - suspended. But he was just suspended and bishop didn't ask for more. Sacraments are valid but illicit. Baptisms are valid, even if not registered. Not using proper rituals - then validity is in question. Extreme example, but it is good that appearances can be trusted. | ||
+ | * 1003 - Sacrament of the sick. Only validly conferred by priest. 1382 - consecrated bishop without pope's mandate - valid, but both are excommunicated. some Canonists assume it is invalid because they are not in communion. | ||
+ | * //Latae sententiae// | ||
+ | |||
+ | **Canon 11 Subjects of Ecclesiastical Law** | ||
+ | Catholic, use of reason, at least seven years old. Divine law and conferral of rights bind everyone. | ||
+ | * Catholic – 1917 code bound all Christians. Baptized by Catholic, or with intent to be catholic, or received into Catholic church. Once Catholic, always Catholic. Law relaxes some marriage laws for Catholics who have left the church. | ||
+ | * Sufficient use of reason – sufficient for the act. E.g. more is needed for ordination than for first communion. //Non sui compos// is not competent to place the act. | ||
+ | * At least seven years old – completed seventh year, i.e., at midnight after the seventh birthday. Bound by obligation to attend mass and refrain from burdensome labor on Sundays and holy days c1247, confess serious sin once a year c989, receive communion once a year (after FHC) c920. Some obligations bind at older age: 14-abstinence c1252, 16 sanctions c1323, and 18 fasting c1252. | ||
+ | * Divine law is binding, the working out and impllication is different. E.g. 1. papacy and its working out. 2. indissolubility of marriage except in the case of adultery - is it divine, and but how does it get worked out. Pre 9th C church got control of marriage - it added indissolubility for social stability. " | ||
+ | * Canon 129 - power of govt and ordination connected. Some say it is a divine law - but this has consequences. Divine law as declared has changed over time. | ||
+ | * //Natura sua// - it has changed in approach - Aquinas completed Canon Law with what he said were natural norms and principles. Neo Thomists - didn't use the technique but they took his results only. Theo Beemer. Instrumentalization of divine law can be a sign of weakness and used shore up weaker positions. | ||
+ | * Also, if only baptised are bound, all are bound by natural or divine. Received into the church means the former baptism was valid. You can get in, but you can't get out. Church can't be generous here and let you out, because you can't leave it. It is a crime to leave Canons 751 & 1364 (heresy, schism) - but it is criminalized so that if you leave, you're excommunicated. | ||
+ | * E.g. bishop. Simonis of Utrecht. Old Catholics had two diocese Haarlem and Utrecht, two bishops 13,000 people. History Started with dispute with 16C Chapter of canons and holy see over appointment of bishops. Typical schismatic conflict. Gradually faith elements came - the people who infallibility in 18C joined the original group. Later they accepted married priests, and later also women priests, furthering the split. Two abishops in Utrecht. Glazenmakers (oc) & Simonis (rc). Ecumenical services. Later two old catholic flemish bishops, both previously Roman Catholic priests Vercammen (married) Wirix (who became old catholic then married). Now Simonis has a problem doing joint services with ' | ||
+ | * [[http:// | ||
+ | - the internal decision to leave the Catholic Church; (internal forum - a problem with doctrine, sacraments, community, governance) | ||
+ | - the realization and external manifestation of that decision; and (Must have more than a mere juridical / administrative act - the formal act to leave is Heresy, Schism or Apostasy see. Canon 751) In order to have a valid act, you have to commit a crime. Lack of crisp legal reasoning. Act personally, **consciously** and freely - consciously is difficult to verify legally. Has to be judged by the bishop - but where is the competence? | ||
+ | - the reception of that decision by the competent ecclesiastical authority. If not accepted, there is no enforcement. The reality is different. This might work with professional theologians, | ||
+ | - In 2009, some exceptions to marriage formalities for those who left by formal act were removed. On 12/15/09, BXVI //Omnium in mentem//, dated October 26, 2009, was published. | ||
+ | - Canon 96: 'By baptism one is incorporated into the Church of Christ and constituted **a person in it**, with the duties and the rights which, in accordance with each ones status, are proper to Christians, in so far as they are in ecclesiastical communion and unless a lawfully issued sanction intervenes.' | ||
+ | - Pio Ciprotti - everyone is a person in the church because of the unlimited message of salvation. True, this is the goal, but it is still a potentiality. | ||
+ | - Pietro Gismondi (60s-70s) Everyone is by natural law a person, canon law follows natural, so that also everyone is a person in canon law. But the canon uses ' | ||
+ | - Vermeersch (1900s - with Creusen - seminary handbooks on Canon Law and Moral Theology) Everyone is a person, but they are not completely persons. Some are incomplete: i.e. they are not baptized. They have the rights, but not the fullness. Problem is that the fact that you have a right to become a member, but don't exercise it, you are not a ' | ||
+ | - Pio Ciprotti - The code sometimes clearly uses persona when the non-baptized are involved 1086 ' | ||
+ | - Read canon 96 closely: it says because you are a person, you have duties and rights. But non-catholics have some rights in the church. E.g. annulment, 861. Rights are given to non-baptized, | ||
+ | * What do we do with persons who do not have any rights in the church, or who have very few rights. E.g. canon 1331. Even the worst excommunicates have a right to seek reconciliation. A very christian idea. So you become a persona incompleta in the church - when you loose certain rights and duties, you are limited. You can become complete again. Urrutia - // | ||
+ | * Christifidelis are part of the church subsists in the catholic Church - which is broader. Canon 204 - but by canon 208 and 223, it will be limited essentially to only the Catholics. 1086, 117, 1124, 96, 204 | ||
+ | |||
+ | **Canon 12 Territorial Binding of Universal Law** | ||
+ | §1, §3 particular law bind those for whom they were enacted, or those with domicile or quasi-domicile. | ||
+ | * **Universal / Particular laws** E.g. feast days bind where you are. Not observed because of 1) Desuetude is a contrary custom; 2) contrary particular law; 3) apostolic privilege or indult; 4) dispensation in a particular case. Particular law may be territorial or personal (e.g. religious). Presumption is that laws are territorial unless clearly personal. Generally territorial laws bind only domiciled (permanent intent, or 5 years) or quasi-domiciled (3 mos. intent, or >3mos) and living there. c102 | ||
+ | * Feast days in 1246.1 but paragraph 2 provides that episcopal conferences could move them. E.g. All Saints, Christmas, Assumption, Ascension. | ||
+ | |||
+ | **Canon 13 Travelers** | ||
+ | * §1 Generally particular laws bind in territory not personally. | ||
+ | * travelers are outside their domicile or quasi-domicile. Transients have no domicile or quasi-domicile. Exceptions are given strict interpretation. | ||
+ | * §2 Travelers are free of all territorial laws. Their home law are relaxed, unless their home would be harmed. The local law is relaxed unless harm results locally: | ||
+ | * Public order – liturgy, events, meetings (but not Churches). Formalities of acts – procedures contracts, bequests, etc; immovable goods. | ||
+ | * §3 Transients – //vagi// persons without domicile or quasi-domicile bound by universal law, and particular law wherever they are. | ||
+ | * In 1917 code, the term for universal law was ius commune. | ||
+ | * //Lex rei sitae// for immovable goods, only the law of the place apply. | ||
+ | * //Lex fori// are the formalities of the place. Two belgians marry they are covered by belgian law for marriage, but the formalities are of the place of the marriage. | ||
+ | |||
+ | **Canon 14 Doubt of Law** | ||
+ | * §1. Law doesn' | ||
+ | * Doubt is a state of mind of withholding assent between two contradictory propositions. Positive doubt is based on a conflict in objective evidence. Negative doubt is a subjective lack of evidence. Dubium iuris occurs when moral certainty is not attainable. Doubt may pertain to meaning, extent, legitimate enactment or promulgation, | ||
+ | * Doubt must be objective and positive, effort must be taken to resolve. Ordinary can dispense doubts if higher authority generally dispenses the impediment (e.g. age) but if the higher authority, to whom dispensation is generally reserved doesn’t dispense, neither can the ordinary. Divine and constitutive laws may never be dispensed. | ||
+ | * E.g. Canon 749 - It is not infallible unless manifestly demonstrated as such. E.g. on women' | ||
+ | * E.g. Canon 277 - Celibacy of clerics - Some exceptions for deacons in 288, but no exception for canon 277. Even continence which is contrary to marriage. | ||
+ | * E.g. Canon 1041 Typical case is irregularities regarding ordination: prohibits ordination to those who attempt marriage while under marriage bond or orders. What about homosexual // | ||
+ | |||
+ | **Canon 15 Ignorance and Error** | ||
+ | * §1Ignorance and Error – ignorance of the law is no excuse. | ||
+ | * §2 The law presumes knowledge of law, penalty, personal facts, and notorious facts. Presumed ignorance of non-notorious facts. | ||
+ | * //Nemo censetur ignorare legum// - a legal fiction. | ||
+ | |||
+ | **Canon 16 Authentic Interpretation of Law** | ||
+ | * [[http:// | ||
+ | * Four types of interpretation: | ||
+ | - Declarative – affirms meaning and applicability – no change – law is clear in itself. Retroactive. | ||
+ | - Restrictive – narrows meaning and applicability – changes meaning. Not retroactive. | ||
+ | - Expansive – broadens meaning and applicability – changes meaning. | ||
+ | - Explanatory – explains without narrowing or broadening the meaning and applicability – puts meaning where it was ambiguous. | ||
+ | * It must be in legal form and promulgated with vacatio for all but declarative. If interpretation is based on divine law, it is retroactive. In doubtful cases, no retroactivity. Interpretations that comes as part of talks, and magisterial acts don’t bind. They allow continued jurisprudential development. | ||
+ | * Judicial and administrative interpretations bind only the parties to the case. Roman Curial decisions have a kind of precedential value. They contribute to the praxis curiae and canonical tradition. | ||
+ | * Sometimes the council gives instructions. Baptized male - what about sex change operation. Man who was a woman, or woman who was a man. (can he/she become a priest 1024) Man became woman at 60 - operations and hormones, about 2 years. Statistics are corrected retroactively. Wanted to get annulment from partner - also a woman. Mother was opposing annulment. | ||
+ | * [[http:// | ||
+ | * E.g. 910 Can extraordinary minister act if an ordinary minister is present. What does extraordinary mean? Does that mean not ordinary, but can operate, or is it that it only operates when the ordinary is there. The interpretation given is only extraordinary if ordinary aren't available. There is a widespread custom against the law. A norm that won't survive. | ||
+ | * E.g. 767 Homily is exclusive for priest or deacon. Preaching is general, homily is specific. Can a bishop dispense from this (canon 85)? Pontifical Council said no, can't dispense because it part of universal norms. When you say dispensation is not possible, you don't clarify the norm, but they made a systematic coordination of the application of dispensation to a particular norm. This is more an application of the law. This is not the task of the council - this is more a matter of regulating the practice of canon law. Urrutia. Even strategically it isn't good because it weakens the law by interpreting it rigidly. Though there are ways of working around it. Homily before the mass. Call it something else. | ||
+ | |||
+ | **Canon 17 Text and Context** | ||
+ | * Doctrinal interpretation is interpretation by canonists and scholars ‘doctors’ is held in high regard. Context: section, Title or part where a word is found. Then: | ||
+ | - __Text and context__ are often sufficient for practice, but doctrinal interpretation requires the further methods. More important than the mind of the legislator. | ||
+ | - __Parallel places__ in 1983 Code, CCEO, etc. E.g. parallel of pope becoming incapacitated - parallel to bishop. But lex specialis derogat lex generalis. Can 332.2 says he can only resign freely - but if he is mentally ill, he can't be free. | ||
+ | - Finem is __value law is enshrining__. Circumstantias is the history that preceded and perhaps precipitated the law. Mentem legislatoris is institutional construct – institution of law, its principles, rules and values. Requires knowledge and experience in canon law, ecclesiology and moral theology. | ||
+ | * Other sources of interpretation are: __canonical tradition, customs, jurisprudence, | ||
+ | * Michiels and Van Hove wrote a lot about this before the Vatican Council | ||
+ | * One can reason a fortiori if this is permitted, then that is certainly permitted; or a contrario - i.e. if this is permitted, then that is certainly not permitted. Teleological - purpose of the text, exegetical - meaning of the legislator. There may be various interpretations: | ||
+ | |||
+ | **Canon 18 Strict Interpretation** | ||
+ | * Strict interpretation limits law’s application to the minimum stated in the text. Interpret strictly: | ||
+ | - __Penal Law__ interpreted strictly. The following also help criminals: | ||
+ | * Canon 6.1.3, old penal law abrogated | ||
+ | * Canon 221.3, nullum crimen, nulla poena sine lege | ||
+ | * Canon 1313 penal law most favorable is applied, even if retroactive, | ||
+ | * However Canon 1399 - you can punish without the law (old canon 2222). | ||
+ | - __Exception__ are interpreted strictly | ||
+ | - __Restrictions__ of free exercise of rights are interpreted strictly. | ||
+ | * It doesn’t change the meaning. Broad interpretation is given in a favorable law. E.g. Postulants are members for extensive interpretation, | ||
+ | |||
+ | **Canon 19 Lacuna Legis** | ||
+ | * If there is NO law, then the legislator may have intended to have no law - to leave things open. This canon only applies if there is a real lacuna. | ||
+ | * Solutions only apply to liceity, validity must be provided in positive law. E.g. constitutions. C1752 - In causis translationis applicentur praescripta c 1747, servata aequitate canonica et prae oculis habita salute animarum, quae in Ecclesia suprema semper lex esse debet. | ||
+ | * There is no hierarchy in the sources listed. The sources are equal in weight. | ||
+ | - parallel E.g. lacuna - qualifications of lay pastoral ministers - argue from parallel to priests, e.g. Canon 276. Argument asimilibus. | ||
+ | - General principles of law: //Liber Sextus// 1298 Boniface VIII. At the end there are 88 regulae juris - legal maxims. Huysmans uses these. //Pars maior, pars sanior. Lex specialis derogat lex generalis. Pontius ut valeat quam ut pereat.// | ||
+ | - //Aequitas canonica// - is there a difference between equity and canonical equity. E.g. french jurist aquitted a poor person who stole bread. Also a dangerous notion - could lead to excessive discretion and abuse. Pastoral approach is good, but it is too dependent on persons. Epiekia - gk. | ||
+ | - Practice of the curia isn’t documented well, but can be obtained from CLSA. It provides guidance, but isn’t binding. These can’t be used to establish penalties. The curia doesn' | ||
+ | - Common and constant opinion of learned persons - common doesn' | ||
+ | |||
+ | **Canon 20 Revocation of Law** | ||
+ | * Later law abrogates or derogates earlier law. But a particular law remains (the exception) even if the norm itself changes. | ||
+ | * Divine laws are immutable, but ecclesiastical laws are human and can be changed, derogated, or abolished, abrogated or add net material, subrogation. Higher authority can revoke own, or lower law. Special law seems to refer to precepts for a juridic person, e.g. proper law. | ||
+ | * Canon 135.2 particular law can't derogate from universal law. E.g. if particular is contradicted by new universal law, that particular law stands, unless specifically derogated. | ||
+ | |||
+ | **Canon 21 Doubtful Revocation** | ||
+ | No revocation in the case of doubt - rather they should be harmonized. Never presume the clash, try to find a way to make the apparent conflict disappear. | ||
+ | |||
+ | **Canon 22 Canonization of Civil Law** | ||
+ | The civil law is incorporated into the code – includes guardianship, | ||
+ | |||
+ | ====Title II: Custom==== | ||
+ | (Cann. 23 - 28) [[http:// | ||
+ | |||
+ | * Custom is very important. It is on the same level as the law and can go against the law. It can be easily abrogated, but once it is there it is formidable. Democratic mechanism in the church. It is a way of non-reception of the law. Custom contra legis is a canonical crime-wave. | ||
+ | |||
+ | **Canon 23** | ||
+ | * Custom is the unwritten law developed by the community itself. Customs may be 1) optional – non-binding, | ||
+ | * Custom isn’t law, but has the force of law. //Vox populi// – the community speaks, not leaders. Competent legislator is the supreme legislator of the territory. For contrary custom, the legislator whose law is derogated (or higher legislator) is competent. Approval may be tacit. Approval may be specific // | ||
+ | * When the legislator approves a custom, he is not legislating. E.g. he can approve a custom contra legem, but he can't enact a law contra legem. | ||
+ | |||
+ | **Canon 24 Reasonableness ** | ||
+ | * Reprobation must be express: //reprobata contraria consuetudine// | ||
+ | * Canon 396§2: The Bishop has a right to select any clerics he wishes as his companions and helpers in a visitation, any contrary privilege or custom being reprobated. | ||
+ | * Canon 423§1 Only one diocesan Administrator is to be appointed, contrary customs being reprobated; otherwise the election is invalid. | ||
+ | * Canon 526§2: In any one parish there is to be only one parish priest, or one moderator in accordance with Canon 517§1; any contrary custom is reprobated and any contrary privilege revoked. | ||
+ | * Canon 1076: A custom which introduces a new impediment, or is contrary to existing impediments (to marriage), is to be reprobated. | ||
+ | * Canon 1287 §1: Where ecclesiastical goods of any kind are not lawfully withdrawn from the power of governance of the diocesan Bishop, their administrators, | ||
+ | * Canon 1425 §1: The following matters are reserved to a collegiate tribunal of three judges, any contrary custom being reprobated: | ||
+ | * Many of the customs are in the area of liturgy that is more visible, and where lay people have more freedom. | ||
+ | * But also parish priests have to ask if they can leave the parish for more than a week - but it is rarely asked. So there is a custom //contra legis//. If it is forbidden, then the growth of the custom stops, then it restarts the running of the 30 years of the custom starts again. | ||
+ | |||
+ | **Canon 25 Community ** | ||
+ | * Community is necessary: so for example. community of Religious Institute, a smaller group can be a easier to have a custom. Community capable / intention. Community for whom law can be made Public Juridic Person, private association. approved and with reg., homogeneous group, e.g. permanent deacons, parish group. Not capable are families, non-approved private associations. Must be distinct and juridically tied to the church. | ||
+ | * Animus of introducing custom may be implicit in act / will. If they don’t object to derogation, there isn’t the will to creat a law. Must be the practice of the majority. CCEO doesn’t mention intent but requires continuous, peaceful practice for 30 yr. | ||
+ | * //Mos// is the habit, but without the intention of making a law. // | ||
+ | |||
+ | **Canon 26 Reasonable Time** | ||
+ | * Even centenary custom can’t overturn reprobation. But no forbidding clause in 1983 code. If ius forbids, only 30 years. required to overturn. Unless it is specially approved earlier. Specialiter probatur. But what if the bishop approves after a month, can he effectively circumvent canon 135 which prohibits an inferior legislator from legislating against a higher legislator. However, approving a custom isn't issuing a law. So the legislator has more power in the framework of a custom than in the framework of a law. Canon 392 which requires him to foster unity, common discipline and following of //all// ecclesiastical law. But that would include following of customary law. Unity doesn' | ||
+ | * Custom also leaves more latitude than a dispensation - you can't leave aside divine law. Canon 85, 86 says that limits for dispensation are more restrictive than for custom. This is true even though the effects of a dispensation are much more limited - with custom, you are replacing the law. This can be explained by the fact that the scope of the custom remains vulnerable to being stopped by a law revoking contrary custom. | ||
+ | * There is a lot of latitude given to the people of God. Prescription is another area that is similar. | ||
+ | * 30 years are interrupted by desuetude or express disapprobation or contrary law is re-issued. | ||
+ | |||
+ | **Canon 27 Interpretation** | ||
+ | * Custom is the best interpreter of the law. This is a principle of roman law. Some believe applies to all customs in a different way. Legal customs don’t | ||
+ | |||
+ | **Canon 28 Revocation** | ||
+ | * canon 5 revokes all customs contrary to the code. Canon 28 provides for revocation of legal customs, factual customs can be removed executively. Law may expressly revoke a contrary law by specifically naming the custom, or generally by stating ‘anything to the contrary notwithstanding.’ (Universal revokes universal – particular revokes universal and particular.) Contrary-ness is tacit revocation (unless centenary or particular). Most say particular can’t revoke a more general custom. | ||
+ | * Proof of custom: 1) community capable; 2) practice of majority; 3) intent; 4) >30 yr.; 5) reasonable. | ||
+ | |||
+ | ====Title III: General | ||
+ | | ||
+ | ^general decree|Canon 29|Legislator|sets norms|a law given by a legislator made by the legislator himself. Legislative power cannot be delegated.| | ||
+ | ^general executory decree |Canon 31|Executive|makes norms more precise|a decree by which an executive gives effect to the law - like a regulation in US law. It can change without changing the law itself. It applies to all to whom the law applies. These are often difficult to distinguish from a general decree| | ||
+ | ^singular decree|Canon 48|Executive| |An application of law for one or a small group - bill of attainder.| | ||
+ | ^decree in the judicial sphere|Book VII|Judiciary| |During a trial, contentious or marriage, etc. E.g. the acceptance of the libellus, the decree of publication. However, you can easily tell this.| | ||
+ | * Note, c.29-30 are on legislative acts (lex) properly part of Title I. C.31-34 are on executory norms (to execute, explain, instruct about a positive law). No mention is made of independent norms which have no underlying lex. This makes it more difficult to understand the role and assess the weight of Vatican statements. | ||
+ | * First five titles go from general to specific, this is the turning Title. | ||
+ | |||
+ | **Canon 29 General Decrees** | ||
+ | The word //decree// is ambiguous – could be legislative acts (laws) or executive / administrative acts applying the law. A **general** decree is a legislative text, it must be promulgated **by** a person or group with legislative power, | ||
+ | |||
+ | **Canon 30 Limits of Executive Power** | ||
+ | One with executive power can't issue laws, they only implement them. An executive can however legislate if that power is specifically delegated by a competent legislator (canon 135.1), the only one who can do this is the Roman Pontiff or an ecumenical council. | ||
+ | |||
+ | **Canon 31 General Executory Decrees ** | ||
+ | Purpose / Issuance of General Executory Decrees – administrative is executive. Distinguish the term //acts of administration// | ||
+ | |||
+ | **Canon 32 General Executory Decree** | ||
+ | Coverage of //general executory decree// is the same as that of the underlying law law. However, this is true only if executor had same jurisdiction as legislator. Otherwise it binds only those bound by the law AND under the jurisdiction of the executive. | ||
+ | |||
+ | **Canon 33 Relation to laws** | ||
+ | §1 Decrees cannot derogate from law. §2 Decrees may be revoked, they fail when the underlying law ceases. However, they don't fail with expiry of the promulgator' | ||
+ | |||
+ | **Canon 34 Instructions** | ||
+ | * §1 Instructions are not laws, and laws cannot be enacted under the title of instruction. A Decree specifies or encourages observance to those bound. An instruction gives practical application to executives. An Instruction is a guideline, handbook, manual. Those with executive power can issue instructions within the limits of their competence. §2 Instructions can't derogate from the law. §3 Decrees may be revoked, they fail when the underlying law ceases. | ||
+ | * Ratzinger used the instruction a lot, it is used a lot in current Roman practice. Theoretically, | ||
+ | |||
+ | ====Title IV: Singular Administrative Acts==== | ||
+ | |||
+ | Administrative act: juridic act performed by administrator as a function of that office. A singular administrative act that resolves a controversy or makes a provision is a decree. A precept imposes an injunction. A rescript answers a request for favor (where petitioner has no right). Indult – is a singular administrative act, e.g. releasing from vows. | ||
+ | |||
+ | ===Ch. I : Common | ||
+ | |||
+ | (Cann. 35-47) | ||
+ | |||
+ | **Canon 35 Author** | ||
+ | * Author – competent administrator within the scope of their power. Decree and rescript described 48. Precept can be given to just one person, can be given to overcome the prohibition against retroactivity. | ||
+ | - Canon 1734 - You can appeal against it is found in canon 1732ff. First step is to ask the author to revoke or amend the decree. | ||
+ | - Canon 1735 - Take it to the hierarchical superior who decides on the legality of the act, and the opportunity of the act. So they don't just review the legality, but also whether or not they would have taken the same decision. Sometimes the congregation in Rome doesn' | ||
+ | * If you protest, it is for the person to made the decision to send your protest to the higher authority. In extreme cases, the person can try to find someone to get the bishop to do his job. | ||
+ | - Canon 1445.2 - Apostolic Signatura decides on the legality only. Administrative tribunal - this is the first time you have an actual judicial tribunal. (There had been the idea that there would have been administrative tribunals at the level of the episcopal conference, but it was seen that this might have been against the unity of the bishops and pope.) | ||
+ | |||
+ | **Canon 36 Interpretation** | ||
+ | similar to c. 17-18 on interpretation of laws. Act is interpreted according to its words - narrowly in the case of litigation, penalties, restricting rights or benefits; otherwise interpret broadly. These are concrete and singular and are limited to a single application in the instant case. You can broaden the a //law// to cover a lacuna, but an act is restricted to the case for which it was issued. | ||
+ | |||
+ | **Canon 37 Written Form** | ||
+ | Written Form required for legitimacy, not for validity because that's not expressly stated. Only required for external forum. Act must be communicated. E-mail / fax are considered not quite adequate. Hard copy must at least follow. Commissorial form – commission someone to go to the person and execute the act. This is especially helpful when the executive is distant from the person involved. It requires the commissioned party to verify the facts are as stated. | ||
+ | |||
+ | **Canon 38 Limits** | ||
+ | Limits – actor must derogate, and must have power to do so if it’s opposed to rights, law or custom. | ||
+ | |||
+ | **Canon 39 Validity** | ||
+ | Conditions affecting validity. What about vernacular. CCEO provides same latin and: similar words in the vernacular. Law favors validity. | ||
+ | |||
+ | **Canon 40 Invalid Anticipation** | ||
+ | Canon 40ff provisions for execution. If otherwise, it should be clearly stated. If you don’t get a dispensation, | ||
+ | |||
+ | **Canon 41** | ||
+ | Limits on acts of executor. Strikes the balance between consistency and subsidiary. Other grave cause may be absence of a derogating clause required by c.38. Don’t apply if null, void, or conditions not fulfilled. | ||
+ | |||
+ | **Canon 42 Invalid Execution** | ||
+ | Fulfillment of norm of mandate and instructions and conditions goes to validity. The conditions for validity should be clearly stated as in c. 39. | ||
+ | |||
+ | **Canon 43 Substitution** | ||
+ | Substitution is allowed unless otherwise provided. | ||
+ | |||
+ | **Canon 44 Succession** | ||
+ | Assumption is that executor is chosen as officeholder, | ||
+ | |||
+ | **Canon 45 Remedy for Error** | ||
+ | Remedy for error – Executor is charged to get the job done. | ||
+ | |||
+ | **Canon 46 Continuity** | ||
+ | Continuity – Admin. Act is a public act, so doesn’t fail when executive fails. | ||
+ | |||
+ | **Canon 47 Revocation** | ||
+ | * Revoked on actual notice. | ||
+ | * There are three types of administrative acts: singular decree communicates decisions; the singular precept impose injunctions; | ||
+ | |||
+ | ===Ch. II : Sing Decrees and Prescripts=== | ||
+ | | ||
+ | |||
+ | **Canon 48** | ||
+ | (4) concerns content and distinguishes it from other admin. acts. Dispute or controversy settled administratively. Also make ‘provision’ i.e. respond to a perceived need. Appoint to offices; establish public assn. of the faithful; major superior of pont. cler. inst erects house. | ||
+ | |||
+ | **Canon 49** | ||
+ | Poorly drafted. SP is an ad. act which…. Precept is more negative – injunction to do or not to do. Administrator must have subject matter and personal jurisdiction. | ||
+ | |||
+ | **Canon 50** | ||
+ | Information & consultation before Decree. Though it only mentions decrees, probably this and others should apply to precepts. A common sense canon. Not necessary for validity. | ||
+ | |||
+ | **Canon 51** | ||
+ | Written form. C.37 requires writing for all acts concerning the external forum. Not required in making provision for an office. Decisory acts affect juridic rights and may be appealed. Best it’s in writing. Appeal of reasons is to administrator’s superior. Appeal to Apost. Signatura is only viable on grounds of substantive or procedural illegality. CCEO allows reasons to be recorded secretly. | ||
+ | |||
+ | **Canon 52** | ||
+ | Limited application. Cannot be extended beyond person and event for which it was issued. | ||
+ | |||
+ | **Canon 53** | ||
+ | Conflicting decrees. Same authority is presumed since higher authority would trump lower. | ||
+ | |||
+ | **Canon 54** | ||
+ | Effective when communicated in an official writing. | ||
+ | |||
+ | ===Ch. III: Rescripts=== | ||
+ | (Cann. 59 - 75) [[http:// | ||
+ | from personal percepts ius to favors gratia. No claim/rt to favors. Hierarchical principle prevails. Elements: competence, matter, recipient, execution and cessation. Singular administrative act a species of constitutive law. | ||
+ | |||
+ | **Canon 59** | ||
+ | * Usually requires a permission, Ordinary Executive power. Second paragraph is new. Code nevertheless favors writing / record. A rescript is for a privilege, dispensation or other favor. Privilege means this law doesn' | ||
+ | * Privileges are less //popular// today; however, many things that started as privileges have later become laws, e.g. Pauline privilege, cardinals are only judged by the pope (// | ||
+ | * Dispensations are less far reaching, however, it can be used to avoid the application of law - e.g. dispense from every application of law - this ends up being a privilege. For this reason dispensation is strictly organized, and some dispensations can actually be invalid. E.g. Canon 90 says dispensation can be illicit, invalid if not given by the legislator himself. Book six and seven can't be dispensed by the bishop. 1435 requires jcl, jcd for judges. Only Rome can dispense. With dispensation, | ||
+ | |||
+ | ===Ch. IV: Privileges=== | ||
+ | | ||
+ | |||
+ | ===Ch. V: Dispensations=== | ||
+ | (Cann. 85 - 93) [[http:// | ||
+ | |||
+ | Abrogate – step away from – contrary to part or all of former law. Dispensation made an executive power, not legislative. Exec power interpreted broadly. | ||
+ | |||
+ | **Canon 85** | ||
+ | dispensations from those with ordinary executive power. Diocesan bishop, vicar gen. Ep.vicar, etc. Clergy are habiles to govern, laity can be appd to offices with executive power. | ||
+ | |||
+ | **Canon 86** | ||
+ | The essential constitutive elements can be dispensed because they constitute the act. E.g. Ordinatio sacerdotalis say constitutive elements of orders. Given for the spiritual good of the faithful. | ||
+ | |||
+ | **Canon 87** | ||
+ | complete reworking of 1917 (obrogates). bishop’s power of dispensation is intrinsic to his power of governance. Can’t dispense constitutive, | ||
+ | [[http:// | ||
+ | |||
+ | **Canon 88** | ||
+ | Competence. Broader than above. But singular person or community. Episcopal conferences don’t give laws, but //general executory decree//s. Liturgical law, can dispense discipline, but not constitutive. However, can’t give carte blanche. | ||
+ | |||
+ | **Canon 89** | ||
+ | Especially in missionary situations. bishop should make it clear at the beginning of any new assignment. | ||
+ | |||
+ | **Canon 90** | ||
+ | Motivating Cause – substantially the same as 1917. Spiritual good is a legitimate cause. There should be a proportionality between the cause and the law. Should be free from dolus deceit. | ||
+ | |||
+ | **Canon 91** | ||
+ | Applies c. 136 on executive power to dispensation. Broader than 1917. Competence is personal and territorial. | ||
+ | |||
+ | **Canon 92** | ||
+ | Dispensation is an exception – so that it’s strictly interpreted. | ||
+ | |||
+ | **Canon 93** | ||
+ | Permission – faculty of doing or omitting something not unlawful. A faculty is the extension of power from a superior with jurisdiction. Indult is a favor for a time, privilege is in perpetuity. Positive objective juridic norm. Absolution, sacramental or juridic releases from penalties or censure. | ||
+ | *New from 1917. | ||
+ | |||
+ | ====Title V: Statutes and Ordinances==== | ||
+ | | ||
+ | |||
+ | Statutes describe the nature of an organization, | ||
+ | |||
+ | **Canon 94 Statutes** | ||
+ | Juridic persons and other aggregates. Purpose compatible with church’s mission; Constitution indicates strategies to realize purpose; governance indicates leadership; procedure is internal and external operations. Legitimate members implies statutes will include issues of admission and separation. Promulgated by legitimate power and approved (canon 117). | ||
+ | |||
+ | **Canon 95 Rules of order** | ||
+ | Those who wish to participate must freely assent to the rules of participation. | ||
+ | |||
+ | ====Title VI: Physical and Juridic Persons==== | ||
+ | |||
+ | ===Ch. I: Physical Persons=== | ||
+ | (Cann. 96 - 123) [[http:// | ||
+ | |||
+ | **Canon 96 Juridic effects of baptism** | ||
+ | Baptism makes a person a member with rights and duties. Correlative to c.204-205 on the spiritual effects of baptism. Advance over the 1917 code where baptism implies duties. Full communion c.205, state of life c.207, 219 and obligations of state. Excludes catechumens c.206 and non-Catholics c.11. | ||
+ | |||
+ | **Canon 97 Age** | ||
+ | Age of majority is 18. Infants are legally incompetent, | ||
+ | |||
+ | **Canon 98 Majority** | ||
+ | §1 One who reaches majority has full rights in the church. Those rights might be narrowed by state in life. §2 Minors subject to parents in exercise of rights, Guardianship follows civil law. Some exceptions exist. | ||
+ | |||
+ | **Canon 99 Mental Condition** | ||
+ | Non sui compos cannot place a valid juridic act, nor commit a crime. | ||
+ | |||
+ | **Canon 100 Residence** | ||
+ | |||
+ | * Status with regard to residence: | ||
+ | |||
+ | ^// | ||
+ | ^//advena// |quasi-domicile |newcomer | | ||
+ | ^// | ||
+ | ^//vagus //| no domicile or quasi-domicile | homeless | | ||
+ | |||
+ | **Canon 101 Place of Origin** | ||
+ | §1 Place of origin of child - parents home, or mother' | ||
+ | |||
+ | **Canon 102 Domicile** | ||
+ | * §1 is Actual residence, or intent to remain, or 5 years. Canonically you can have more than one - e.g. the Russian Czar. | ||
+ | * §2 is residence for three months, or intention to remain for 3 months. | ||
+ | * in the European state - the center of your interests, where you are, where your social life it, etc. It is more defacto. Intention of residence is more important in this, than actual residence. Even though you can cross over to register, your canonical rights actually exist according to your territory. Even **opus dei** people are domiciled in their parish - lay people aren't even mentioned in the statutes - it is technically a group of priest. | ||
+ | |||
+ | **Canon 103 Domicile of Religious** | ||
+ | House to which they are assigned - but they have quasi domicile where they reside. Important for faculties of religious priests. | ||
+ | |||
+ | **Canon 104 Domicile of Spouses** | ||
+ | Spouses have a common domicile unless separate or just cause. 1917 Required wife to domicile with husband. | ||
+ | |||
+ | **Canon 105 Domicile of Minors** | ||
+ | * §1 Domiciled with parent or guardian, over 7 years of age can have a quasi-domicile, | ||
+ | * §2 Other conservatee is domiciled with guardian | ||
+ | **Canon 106 Loss of Domicile** | ||
+ | Domicile lost with 1. departure; and 2. intent not to return. Most say multi-domiciles not possible. Loss of acquired rt. Requires strict interpretation. | ||
+ | |||
+ | **Canon 107 Juridic effect of domicile** | ||
+ | Through domicile and quasi-domicile, | ||
+ | |||
+ | **Canon 108 Degrees of Consanguinity** | ||
+ | Acts of generation. 4th degree is normative in most cases. 2nd degree prevents marriage by divine law, not dispensable. Also direct line consanguinity can’t be dispensed. | ||
+ | |||
+ | **Canon 109 Affinity** | ||
+ | Spouses stand in each others stead to count affinity. Only affinity in direct line is a matrimonial impediment c. 1092. Previous code had another method of calculation. | ||
+ | |||
+ | **Canon 110 Adoption** | ||
+ | Adoptive parents acquire canonical parental rights on civil adoption. | ||
+ | **Canon 111 Rite** | ||
+ | * §1 Children in rite of parents - or where they agree, or of the father. | ||
+ | * §2 Baptized over 14 years, can choose own rite. | ||
+ | **Canon 112 Change of Rite** | ||
+ | * §1 Change rites 1. with permission of the apostolic see; 2. spouse transferring to rite of spouse - can freely revert at the end of the marriage. 3. Children of the above can return to the Latin Church after their 14th year. | ||
+ | * §2 Prolonged receipt of sacraments in another ritual doesn' | ||
+ | ===Ch. II : Juridical Persons=== | ||
+ | | ||
+ | |||
+ | **Canon 113 Moral and Juridic Persons** | ||
+ | * §1 The Catholic Church and The Apostolic See are moral persons by divine ordinance (moral persons are collectives not officially constituted). | ||
+ | * §2 Juridic persons are subjects of rights and duties. Terms undefined. Juridic persons are moral persons that are constituted for an apostolic purpose. Perpetual by nature. | ||
+ | *They may be described in the law, e.g. parish, diocese, religious congregation. But a parish not represented by the priest doesn' | ||
+ | *They may be given to a private association. | ||
+ | |||
+ | **Canon 114 Creation ** | ||
+ | * §1 Aggregates of persons or things / alignment with Church' | ||
+ | * §2 Works of __piety__, of the __apostolate__ or of __charity__, | ||
+ | * §3 Authority should determine that the purpose is useful and the means are sufficient to achieve the purpose. | ||
+ | |||
+ | **Canon 115 Classifications** | ||
+ | * §1 Aggregates of persons or things that acquires or is granted separate legal existence. E.g. Though ecclesiologically the parish is the community of faith, canonically, | ||
+ | * §2 Aggregate of **Persons** // | ||
+ | * §3 Aggregate of **Things** // | ||
+ | |||
+ | **Canon 116 Public and Private** | ||
+ | * §1 Public Juridic Persons fulfill their purpose in the name of the church for the public good. Other juridic persons are private. | ||
+ | * §2 Public Juridic personality is received by law or by decree. Private juridic personality is received only through decree. Private juridic person is new to the 1983 code and was required to give structure to the Council' | ||
+ | |||
+ | **Canon 117** | ||
+ | "No aggregate of persons or of things seeking juridical personality can acquire it unless its statutes are approved by the competent authority." | ||
+ | |||
+ | **Canon 118 Agents** | ||
+ | Those acting for the juridic persons are those competent in law or in the statutes. Sometimes, the civil structure doesn' | ||
+ | |||
+ | **Canon 119 Decisions** | ||
+ | * Default rules for collegial elections and decision. Generally provision for these will be made in law or in statutes. Notable here is that an absolute majority of those present elects or decides, i.e. abstentions and invalid votes are counted. §3 Quod omnes tangit debet ab omnibus approbari. | ||
+ | * [[http:// | ||
+ | |||
+ | **Canon 120 Termination** | ||
+ | * §1 Juridic Person is by nature perpetual, but may terminate by 1. lawful suppression by competent authority, 2. inactive for 100 years. 3. Private juridic persons may be dissolved by the association according to its statutes. Suppression of religious institutes and societies is reserved to apostolic see, even if diocesan right. | ||
+ | * §2 Even just one person can continue a collegial juridic person. | ||
+ | |||
+ | **Canon 121 Consolidation** | ||
+ | Two or more universitates (public juridic persons) can be joined to a new universitas which is a successor in interest to the prior entities. Donor intent has to be respected with regard to goods and acquired rights are to be honored. Competent authority would have to suppress the prior entities and erect the new entity. Alienation rules do not apply. Private juridic persons can consolidate according to their own statutes. | ||
+ | |||
+ | **Canon 122 Division** | ||
+ | In division of a universitas, | ||
+ | |||
+ | **Canon 123 Extinction** | ||
+ | Unless otherwise provided in statutes, goods, rights and obligations go to the juridic person immediately superior, with due regard to intentions of founders and donors and to acquired rights. Goods, rights and obligations of private juridic persons goes according to its statutes. Distribution of goods of an extinct religious institute or society is reserved to the Holy See. Some public juridic persons are not hierarchically constituted, | ||
+ | |||
+ | ====Title VII: Juridical Acts==== | ||
+ | |||
+ | (Cann. 124 - 128) [[http:// | ||
+ | * Robleda dfn: “an externally manifested act of the will by which a certain juridical effect is intended.” Requires 1) rational act 2) with the intention to produce juridic effect. | ||
+ | * Requires knowledge, intention, discretion and capacity. Not a human act (no will); not an ordinary act (no juridic effect); not a juridic fact (no will). Requires specific intent. Unilateral: one does (law); bilateral, e.g. marriage. C.119 on collegial acts is close to this section. | ||
+ | |||
+ | **Canon 124 Requirements** | ||
+ | * 1917 code only had invalidating elements. 1983 gives positive requirements. Person can be physical juridic or collegial. Qualified person is a person with right to act: general and specific. Formalities: | ||
+ | * basic elements for // | ||
+ | |||
+ | **Canon 125 Force and Fear** | ||
+ | * Irresistable force absolutely invalidates, | ||
+ | |||
+ | **Canon 126 Ignorance and Error** | ||
+ | * If ignorance goes to substance of choice, it invalidates. If it goes to accident which was nevertheless the reason for placing the act it may still be rescinded. In a collegial act, if there are sufficient free votes to place the act, it is valid, even if some were affected adversely. | ||
+ | |||
+ | **Canon 127 Consent or Counsel** | ||
+ | * Consensus and concilium. CCEO requires superior to provide adequate information and ensure that counselors have the opportunity to speak freely. A tie isn’t consent. Superior can’t vote in consent. Seeking counsel needn’t be in person, should be analogous to the group convoked. Relaxation of convocation requirement only if in particular or proper law. Can act against counsel but should have an overriding reason - in their own mind. | ||
+ | * §2 When consent or counsel of persons as individuals is required, consent of all is required, and or the opinion of all is needed for counsel. | ||
+ | * The superior places the act, but requires consent for validity. In a collegial act, superior votes with the others, and the group places that act. If consent of individuals is required, each has veto power. | ||
+ | * §3 Those giving consent or counsel should do so diligently, secrecy may be imposed. | ||
+ | * All must be convened, those not present loose the right to be heard, or to vote. In a collegial act, the superior sits as a true member of the group with one vote. In consent and counsel, the superior decides alone, with the advise or consent. | ||
+ | * [[http:// | ||
+ | |||
+ | **Canon 128 Restitution** | ||
+ | * Restitution or reparation required if damage is illegitimately inflicted by a juridic act. Restitution is to be through church channels. Problem is that often things are done administratively, | ||
+ | |||
+ | ====Title VIII: Power of Governance==== | ||
+ | |||
+ | (Cann. 129 - 144) [[http:// | ||
+ | * Separate books in the code are on teaching and sanctifying munera, but nothing on the ruling function. This on governance doesn' | ||
+ | |||
+ | **Canon 129 Who Exercises** | ||
+ | §1 Those is orders are qualified for the power of governance / jurisdiction which is in the church by divine constitution. (Clerics qualified, doesn' | ||
+ | |||
+ | **Canon 130 Internal and External Forum** | ||
+ | | ||
+ | |||
+ | **Canon 131 Ordinary and Delegated Power** | ||
+ | §1 Ordinary power pertains to the office, delegated power is given to a person. §2 Ordinary power can be proper or vicarious (e.g. vicar general VG exercises power in the name of the bishop). §3 burden of proving delegation rests on the delegate. | ||
+ | |||
+ | **Canon 132 Habitual | ||
+ | | ||
+ | |||
+ | **Canon 133 Validity of Acts by Delegate** | ||
+ | §1 //ultra vires// acts of a delegate are without effect. §2 Delegate who acts in a manner contrary to the delegation acts invalidly if the manner is expressly required for validity. | ||
+ | |||
+ | **Canon 134 Ordinaries** | ||
+ | §1 Pope, diocesan bishop, VG, EV, Major superiors of clerical institutes SAL of pontifical rite. §2 **local** ordinary are all the above except Major Superiors. §3. Diocesan Bishop does not include VG or EV. When the code specifies Diocesan Bishop, that power can be delegated to VG or EV, who then exercise it as delegated power. | ||
+ | |||
+ | **Canon 135 Legislative, | ||
+ | * §1 Power of governance is distinguished as Legislative, | ||
+ | * §2 Legislative power must be exercised in accord with law - cannot be delegated unless provided in law, e.g. canon 30 (except by pope and college of bishops). | ||
+ | * §3 Judicial power of judges must be exercised in accord with law and can't be delegated. | ||
+ | * §4 Executive power is exercised as provided here. | ||
+ | |||
+ | **Canon 136 Scope of Executive Power** | ||
+ | | ||
+ | |||
+ | **Canon 137 Delegation and Subdelegation** | ||
+ | §1 Can be delegated for single act or all cases, unless specifically prohibited. §2 Executive power of the Holy See can be subdelegated, | ||
+ | |||
+ | **Canon 138 Interpretation** | ||
+ | | ||
+ | |||
+ | **Canon 139 Several Competent** | ||
+ | §1 Generally if a person approaches one of several competent to act, it doesn' | ||
+ | |||
+ | **Canon 140 Several Delegates** | ||
+ | §1 If several are delegated //in solidum// (jointly) when one begings to act, the others are excluded, unless the first is impeded or doesn' | ||
+ | |||
+ | **Canon 141 Successive Delegation** | ||
+ | First delegate, or specific delegate has priority. | ||
+ | |||
+ | **Canon 142 Cessation** | ||
+ | §1 Delegated power ceases by: 1. fulfillment, | ||
+ | |||
+ | **Canon 143 Cessation of Ordinary Power** | ||
+ | §1 Ordinary power ceases with the loss of office. | ||
+ | |||
+ | **Canon 144 Error and Doubt** | ||
+ | | ||
+ | |||
+ | ====Title IX: Ecclesiastical Offices==== | ||
+ | * Ecclesial Office is a function established in a stable manner. Ordinations were ' | ||
+ | * (Cann. 145 - 196) [[http:// | ||
+ | * 52 canons. It is important to know what an ecclesiastical office is. Offices are stable - it has a task or tasks, but not every task is an office. This exists on a macro and micro level. | ||
+ | * //Tria munera// of the church carried out in - // | ||
+ | |||
+ | **Canon 145** | ||
+ | * Ecclesiastical office is any function constituted in a stable manner by divine or ecclesiastical ordinance to be exercised for a spiritual purpose. All four of the following factors must be present. | ||
+ | * Office is a function, //munus//. The power to carry out the office is the ordinary power of the office which can be exercised by the officeholder or by another vicariously. | ||
+ | * The office must be constituted by divine or ecclesiastical ordinance. Those said to be of divine origin are the pope, the college of bishops and the diocesan bishop. Some offices come into existence when a structure is created, e.g. a diocese or province of a religious order. | ||
+ | * Office is stable, i.e. objectively the office outlasts the officeholder and subjectively, | ||
+ | * The office is constituted for a spiritual purpose. Office is distinct from ordination - volunteers and employees can, but need not hold offices. | ||
+ | * Unresolved issues: | ||
+ | * It is unclear who creates the office, and whether legislative or only administrative power is required to create it. | ||
+ | * It is unclear whether a bishop can change obligations of offices provided in law? | ||
+ | * Some dioceses have created delegates - not vicars, attempting to avoid giving title of vicar to non-clergy. But these are de facto offices having all the elements described above. | ||
+ | * What is the status of lay pastoral ministers, principals, catechists, theologians, | ||
+ | * Significance of the Office: 1) it is a commitment by the church to staff the position; 2) there are criteria for appointment and removal; 3) Officeholder has the right and power to fulfill the office; 4) there are procedures for loss of office. Basically this is a manual for church due process in human resources. Would that it were followed. | ||
+ | |||
+ | ===Ch. I : The Provision of Ecclesiastical Office=== | ||
+ | | ||
+ | |||
+ | **Canon 146 Canonical Provision** | ||
+ | | ||
+ | |||
+ | **Canon 147 Methods of Provision** | ||
+ | | ||
+ | |||
+ | **Canon 148 Competent Authority** | ||
+ | | ||
+ | |||
+ | **Canon 149 Qualifications** | ||
+ | * §1. Communion with the church and suitable. Communion means not excommunicated or publicly abandoned the faith. Communion required is not 'full communion', | ||
+ | * §2. Provision to one who is unsuitable is invalid if the qualifications are expressly required in law, rescindable if not. Few offices clearly state qualifications, | ||
+ | * §3. Provision based on simony is invalid. | ||
+ | |||
+ | **Canon 150 Full Care of Souls** | ||
+ | | ||
+ | |||
+ | **Canon 151 Vacancy** | ||
+ | | ||
+ | |||
+ | **Canon 152 Incompatible Offices** | ||
+ | | ||
+ | |||
+ | **Canon 153 Availability** | ||
+ | §1. Appointment of a second person to an office is invalid (not validated by subsequent vacancy). | ||
+ | |||
+ | **Canon 154 Illegitimate possession** | ||
+ | | ||
+ | |||
+ | **Canon 155 Negligence in Provision** | ||
+ | If another appoints to an office because of negligence of the provider, this does not change the hierarchical order. | ||
+ | |||
+ | **Canon 156 Provision in Writing** | ||
+ | | ||
+ | |||
+ | ==Art. 1: Free Conferral== | ||
+ | | ||
+ | |||
+ | **Canon 157 Free Conferral** | ||
+ | Diocesan bishop provides for offices in his particular church. Right to the office is //ius ad rem//, the office itself is //ius in rem//. | ||
+ | |||
+ | ==Art. 2: Presentation== | ||
+ | | ||
+ | |||
+ | **Canon 158 Presentation** | ||
+ | | ||
+ | |||
+ | **Canon 159 Willingness** | ||
+ | No one is to be presented unwillingly" | ||
+ | |||
+ | **Canon 160 Several Presentations** | ||
+ | §1. One with the right to present can present several simultaneously or sequentially. §2. No one can present oneself, but a group can present one of its members. | ||
+ | |||
+ | **Canon 161 Re-Presentation** | ||
+ | If the presentee is unsuitable, renounces or dies, another can be presented within a month. | ||
+ | |||
+ | **Canon 162 Loss of Right** | ||
+ | One who hasn't presented in time, or has twice presented an unsuitable person looses the right. Conferrer can choose. | ||
+ | |||
+ | **Canon 163 Installation** | ||
+ | The office is conferred on one who is presented, suitable and willing. | ||
+ | |||
+ | ==Art. 3: Election== | ||
+ | | ||
+ | |||
+ | **Canon 164 Default Rules for Election** | ||
+ | |||
+ | **Canon 165 Convening the Electors** | ||
+ | | ||
+ | |||
+ | **Canon 166 Convocation** | ||
+ | §1. Groups presider to convoke all, if notice is personal, it is valid if to the domicile or quasi-domicile or residence of each. §2. If someone is overlooked and absent, the election is valid, however, on recourse by the absent person within three days of notice of the election, the election must be rescinded. §3. If notice to more than on third of the electors is overlooked the election is null unless they are all actually present. Some say notice need not be given to those who cannot vote. | ||
+ | |||
+ | **Canon 167 Proxy** | ||
+ | §1. Proxy votes prohibited, unless allowed in proper law. §2. Someone on site, but absent due to ill health is to be included. | ||
+ | |||
+ | **Canon 168 One Vote** | ||
+ | | ||
+ | |||
+ | **Canon 169 Validity of Election** | ||
+ | Only members of group or college can vote. Otherwise invalid. | ||
+ | |||
+ | **Canon 170** | ||
+ | | ||
+ | |||
+ | **Canon 171 Validity of Vote** | ||
+ | §1. Unqualified to vote are those: incapable of a human act, lacking active voice, under penalty of excommunication properly declared or imposed, or notoriously defected from the communion of the Church (formal act not required). §2. If admitted, the vote is null but the election is valid if the null vote didn't change the results. | ||
+ | |||
+ | **Canon 172 Free, Secret, Unconditional** | ||
+ | §1. Each vote must be free, secret, certain, absolute and determined for validity. §2. Conditions attached to a vote are null. | ||
+ | |||
+ | **Canon 173 Conducting the Vote** | ||
+ | * §1. Two tellers designated from the group. | ||
+ | * §2. Verify number of ballots is equal to number of electors, count votes and announce number for each openly. | ||
+ | * §3. If ballots exceeds number of electors: invalid. | ||
+ | * §4. Acts of election are recorded, signed by secretary, presider and tellers and preserved in the archives. | ||
+ | **Canon 174 Compromise** | ||
+ | §1. Unless statutes provide otherwise, election by compromise: by unanimous electors select one or more suitable persons, from the membership or beyond, to elect in the name of all. §2. in a college of only clerics, electors must be ordained. §3. Commissioned must observe law of elections and conditions attached to the compromise. | ||
+ | |||
+ | **Canon 175** | ||
+ | | ||
+ | |||
+ | **Canon 176 Election** | ||
+ | One with the required votes is elected and to be announced. If number is specified in proper law, 119.1 provides 50% plus 1, etc. | ||
+ | |||
+ | **Canon 177 Acceptance** | ||
+ | §1 Election is to be communicated to the electee who must accept in 8 useful days after notification. §2 If the election is declined, the electee looses all rights to the office, but can be elected again. The college must proceed with a new election within a month after notice. | ||
+ | |||
+ | **Canon 178 Acquiring Office ** | ||
+ | If no confirmation is required, the elected immediately acquires the right to the office. | ||
+ | |||
+ | **Canon 179** | ||
+ | §1 If confirmation is require, the elected seeks confirmation within 8 days or looses the right to the office (unless impeded). §2 Authority can't deny confirmation if the elected is suitable and the election was lawful. §3 Confirmation must be in writing. §4 Elected can't act before confirmation - any such acts in the office are null. §5 Once confirmed the elected immediately acquires the right to the office. Ius ad rem till confirmation which gives ius in re. | ||
+ | |||
+ | ==Art. 4: Postulation== | ||
+ | * [[http:// | ||
+ | * Vote for one canonically impeded. Postulated candidate receives office on acceptance after dispensation. | ||
+ | **Canon 180** | ||
+ | §1 Electors choose one impeded, believed more suitable and preferred. Impediment must be customarily dispensed. §2 Compromise electors can't postulate unless they were given this right. | ||
+ | |||
+ | **Canon 181 Two-thirds Required** | ||
+ | Two thirds vote required for postulation. Vote for postulation must include: //I postulate// | ||
+ | |||
+ | **Canon 182 Submission** | ||
+ | §1 Send within 8 days to dispensing authority (confirming authority if any). §2 If not sent, it is null and the group is deprived of the right of election, unless the presider was impeded or refrained by malice or negligence. §3 Dispension is not required but may be given for a just cause. §4 Postulation can't be revoked unless dispensing authority consents. | ||
+ | |||
+ | **Canon 183 Denial** | ||
+ | §1 If the postulation is denied the right of election returns to the group. §2 If the postulation is admitted, the individual is asked to consent, canon .177. §3 On acceptance, the person acquires the full right to the office //Ius in re// (since the dispensing authority is the confirming authority) | ||
+ | |||
+ | ===Ch. II : Loss of Ecclesiastical Office=== | ||
+ | * Civil law contracts must be respected in the loss of Ecclesiastical offices. | ||
+ | * [[http:// | ||
+ | |||
+ | **Canon 184 Loss of Office** | ||
+ | §1. Loss of Ecclesiastical Office by (death) time, age, resignation, | ||
+ | |||
+ | **Canon 185 Emeritus** | ||
+ | | ||
+ | |||
+ | **Canon 186 Lapse of Time** | ||
+ | Loss by lapse of time or resignation occurs only when notified by conferror. | ||
+ | |||
+ | ==Art. 1: Resignation== | ||
+ | * Resignation initiated by officerholder. | ||
+ | * [[http:// | ||
+ | |||
+ | **Canon 187 Subject** | ||
+ | Only sui compos can resign for a just cause. - incompetent person is also incompetent to resign. | ||
+ | |||
+ | **Canon 188 Undue Influence** | ||
+ | If there is undue influence, resignation is invalid. Fear, malice, error, simony. | ||
+ | |||
+ | **Canon 189 Process** | ||
+ | §1. For validity, resignation must be to the authority responsible, | ||
+ | |||
+ | ==Art. 2: Transfer== | ||
+ | | ||
+ | |||
+ | **Canon 190 Transfer** | ||
+ | §1. Can only be made by one with authority over both offices. §2. grave cause needed if officeholder is unwilling. §3. must be in writing (i.e. as a decree). Grave causes should also be in writing. If the transfer is a penalty, penal norms are to be followed. Recourse will suspend the transfer. | ||
+ | |||
+ | **Canon 191 Timing ** | ||
+ | Prior office vacant when second is taken up. Remuneration of prior office till second is taken up. If recourse is taken against the transfer, prior office is occupied //de jure// till resolved. Otherwise it is vacant when the second is taken. | ||
+ | |||
+ | ==Art. 3: Removal== | ||
+ | | ||
+ | |||
+ | **Canon 192 Decree** | ||
+ | | ||
+ | |||
+ | **Canon 193 Manner** | ||
+ | §1. In indefinite term, only for grave cause, according to lawful process. §2. Likewise for removal before teonferred at //prudent discretion// | ||
+ | |||
+ | **Canon 194 Removal by Law** | ||
+ | §1. Office lost by law itself: one who looses clerical state, one who has public defected, a cleric who attempts marriage. §2. Loss is enforceable when declared. Officeholder' | ||
+ | |||
+ | **Canon 195 Support ** | ||
+ | | ||
+ | |||
+ | ==Art. 4: Privation== | ||
+ | | ||
+ | |||
+ | **Canon 196 Penalty** | ||
+ | | ||
+ | ====Title X: Prescription==== | ||
+ | | ||
+ | |||
+ | Prescription is a means of gaining or losing legal rights or obligations. It helps resolve prolonged uncertainty about property. Prescription may be acquisitive (gaining property or rights) or extinctive (liberation from obligtions). | ||
+ | |||
+ | **Canon 197 Follows Civil Law** | ||
+ | | ||
+ | |||
+ | **Canon 198 Good Faith** | ||
+ | | ||
+ | |||
+ | **Canon 199 Exceptions** | ||
+ | Some rights are beyond the reach of prescription: | ||
+ | - rights and obligations which are of divine law, whether natural or positive - e.g. Canons 219 choice of state, 217 christian education, 226 Christian education of Children. | ||
+ | - rights which can be obtained only by apostolic privilege - e.g. erection of public associations 312, indulgences 995, | ||
+ | - rights and obligations which bear directly on the spiritual life of Christ' | ||
+ | - the certain and undisputed boundaries of ecclesiastical territories; | ||
+ | - Mass offerings and obligations; | ||
+ | - the provision of an ecclesiastical office which, in accordance with the law, requires the exercise of a sacred order; - since the code specifies how ecclesiastical offices are obtained, it is not clear what this canon refers too - the reference to orders is also ambituous. Drafting history provides no insight in the matter. | ||
+ | - the right of visitation and the obligation of obedience, so that Christ' | ||
+ | ====Title XI: The Reckoning of Time==== | ||
+ | | ||
+ | |||
+ | **Canon 200 General** | ||
+ | | ||
+ | |||
+ | **Canon 201 Continuous and Useful Time** | ||
+ | // | ||
+ | |||
+ | **Canon 202 Day, Month, Year** | ||
+ | A day is 24 hours beginning at midnight, unless otherwise provided, a week is 7 days, a month is 30 days and a year is 365 days, unless they are specified as a calendar month or year. In continuous time, it is always taken as calendar time. | ||
+ | |||
+ | **Canon 203 First and Final Days** | ||
+ | First day is not counted unless the initial act is at midnight. Last day is counted, and ends at midnight. Like retreat days. 5 days from now - count from midnight the beginning day, then 5 full days to midnight. | ||
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