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Table of Contents
Book I : General Norms
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 Liturgy
- 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). Both said that acolytes must be boys. Canon 230 §1 Lay men whose age and talents meet the requirements prescribed by decree of the Episcopal Conference, can be given the stable ministry of lector and of acolyte…. Does the use of stabiliter cancel out the use of laymen? After all, there are not many professional altar boys.
- 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, cantor or other such, in accordance with the law.“ Acolytes not mentioned. Included in the “other functions”? Within the “norm of law”? What law, code or liturgical books?
- E.g. Canon 1112 says Laymen may assist at a marriage under two conditions: 1) It is approved by the relevant conference of bishops, and 2) it is allowed by the Holy See. This is according to the norm of law: ad normam juris.
- Instruction doesn't change the code, even when the pope approves it in forma specialis, however, often a change results.
Canon 3 Diplomatic Agreements
- Secular hierarchy - int'l law, national, local. Code recognizes 'treaties' concordats, etc.
- 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: >100 yr. Immemorial predate memory of the oldest persons in the community.
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, and pope sometimes narrowed. Privilegium petrinum - all other cases. PP+pp is PF
- 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't enforce, he said in a decretal: the bishop could remonstrate against the pontifical law. On remonstration, the law is suspended on the territory of the bishop's, unless and until the pope reacts. Pope could repeat the law (veto). There was more equilibrium in the lawmaking process. Puza says Ius remonstrandi still stands. The 1917 code didn't speak to the issue, nor 1983.
- 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 'divine law' changing. E.g. change of purpose of marriage. 19th C popes said religious freedom is madness, but now…. 'completely in line with my predecessor'
- Inter insignious 1976 Seven arguments against female priesthood putatur 'supposed to be'
- Biblica Commission 1975 said many good arguments for and many good arguments against.
- Can this be remonstrated - bishop solo makes choice. He doesn't have to follow the people. He can't go against theology, so divina constitutio is safe. End of discussion - is a legal position, then this could be remonstrated. This was misinterpreted to be saying you can ordain.
- 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, it means it is not empirically evident.
- 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, etc. These are the fundamental principles that are used to apply and interpret the rest of the code.
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: pope, bishops, councils, and conferences. Curia has executive and judicial power only. Only pope and bishops can delegate legislative power. (Chapters?)
- 1. letter is Apostolic Constitution. Motu proprio “on his own initiative” i.e. signed it. 2. letter. Authentic interpretations can be given the force of law. All laws have the same juridical weight. But lawgiver gives the authority of law: universal lawgiver (pope, ecumenical council) makes universal law.
- 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, exemption or epieikeia. Lawmakers and subjects should be active in advancing the law.
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
- 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, must expressly so state, and they should not be made retroactive unless it’s for the good of the people.
- 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, unity, indissolubility. Legal under 1917 code. VCII - love covenant “partnership of their whole life, and which of its own very nature is ordered to the well being of the spouses” is now part of the relationship. Pouring new content isn't changing law, but it changes circumstances.
- Registered partnership - close to marriage, but not marriage (can't adopt) - not in the code. It was intended for homosexuals, but was extended. Msgr. Hersmans, Canons 1394, 1395 - marriage, concubinage forbidden. Formed registered Partnership because if done before 65th, 'wife' could get his pension.
Canon 10 Invalidating Laws
- leges irritantes establish requirements of the act or person for validity. There are many expressions used for this: capax esse; dirimere; habere effectum, obtinere effectum or sortiri effectum; incapax; inhabilis; invalidus; irritus; nullus; valide; validitas; falidus; vi carere; vim habere; vim non habere; and vitiare. Validity requirements may be implied from text, context, intent, parallel places, tradition, legislative history, etc. Unless it’s clear, it is not invalidating.
- 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. E.g. Lefebre. Also Czech underground church: Zaradnik (married man) was ordained bishop. - later he was asked to limit himself to a permanent deacon, that lead to problems. Milingo.
- Latae sententiae - Act committed, liability is automatic. Generally it is then declared. Ferende sententiae - procedure leads to excommunication.
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. “Merely Ecclesiastical Law” is referred to - indicating a hierarchy of law. It is difficult to distinguish divine from ecclesiastical based only on the text.
- 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 'criminal' priests.
- **Leaving the Church by Formal Act** Only exceptionally do people try to formalize the act of leaving the church. Usually they just 'fall away'. The key issue is do we have the right to leave the truth. The truth exists, the catholic truth, but there is no compulsion in religion. Required manner for leaving:
- 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, but not with the people in the pews.
- 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. One of the two issues in the Motu Proprio concerns “the elimination of the clause actus formalis defectionis ab Ecclesia Catholica contained in canons 1086 para. 1, 1117 and 1124.
- 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.' This uses persona, not membrum, because the notion is that you are in it for good. Some argue that ALL persons are persons in the church.
- 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 'person in the church.'
- 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 'person in the church' at all.
- Pio Ciprotti - The code sometimes clearly uses persona when the non-baptized are involved 1086 'marriage between two persons, one not baptized…' Therefore everyone is a person. But code isn't consistent in its language, the use in canon 96 and 1086 are different.
- 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, therefore they are persons. This reverses the argument.
- 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 - Personalitas numquam 'totaliter' amittitur a baptizato. Otherwise what is the effect of baptism.
- 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't bind if there is a doubt of law.
- 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, revocation. §2 Dubium facti doubt of fact: question of actual age, valid sacraments, membership in Catholic Church. Ordinary (c134) can dispense.
- 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's priesthood - there was argumentation whether it was infallible or not. So there was doubt showing that it wasn't manifestly demonstrated.
- 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 marriage. But also for 'abortum procuraverit' - what if someone councils abortion - you could dispense from the possible irregularity.
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
- Official Interpretation of Law – PCILT – pontifical council for the interpretation of legislative texts. Since interpretation is a legislative function it can’t be delegated except by Supreme Pontiff who can allow lower legislators to delegate.
- 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.
- 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, curial practice, and constant scholarship.
- 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: so for private interpretation, you can select the appropriate interpretation.
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, exception to canon 9 laws are not 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, novices are members for broad interpretation, juniors are members for strict interpretation, perpetuals are members for restrictive interpretation. Extensive interpretation of abortion required legislator. Exceptions are strict? To limit exceptions, or to limit application? Look to favorable interpretation. Where exception gives favor to one at the expense of another, give a strict 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't have binding value is as in US; if you appeal, it would bind, but you may never appealed. Both parties may be interested in keeping to the local forum.
- Common and constant opinion of learned persons - common doesn't mean everyone, constant need not be too long. (seems closer to Rome is more learned you are). Players at the Rota may also teach at canon law schools in Rome or comment on their own judgments, often favorably.
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, civil effects of marriage, adverse possession, contracts, possessory actions, settlements, compromise, arbitration. It really has no choice to obey civil law. A societas perfectas could choose it's legal compliance. A complete, autonomous society is intended (Tarquini). Now even European states are no longer autonomous. This was developed on loss of papal states, but was not taken up (nor abrogated) in Vatican 2. There are more realistic references to civil in other sections: selling of goods in canon 1296 - if canon law isn't followed, bishop should do whatever…but in fact, it's all over.
Title II: Custom
- 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.
- Custom is the unwritten law developed by the community itself. Customs may be 1) optional – non-binding, no one would object to its modification or removal; 2) factual – actually observed, and considered binding, but doesn’t have the force of law, any superior or custom can remove; 3) legal – put in by force of law. Custom may be praeter ius beyond the law – an area not covered, or contra legis contrary to the law. Third traditional category of a custom in accord with law secundum legem is not helpful.
- 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 specialiter. Else it may be legal or general – custom is observed for 30 years, whether or not legislator is aware canon 24-26. A custom may be centenary >100 yr. or immemorial – as long as anyone can remember.
- 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, both clerical and lay, are bound to submit each year to the local Ordinary an account of their administration, which he is to pass on to his finance committee for examination. Any contrary custom is reprobated.
- Canon 1425 §1: The following matters are reserved to a collegiate tribunal of three judges, any contrary custom being reprobated: 1° contentious cases: a) concerning the bond of sacred ordination; b) concerning the bond of marriage, without prejudice to the prescripts of canons 1686 and 1688; 2° penal cases: a) for offenses which can carry the penalty of dismissal from the clerical state; b) concerning the imposition or declaration of an excommunication.) Custom contrary to divine law intrinsically unreasonable; expressly reprobated can never have force of law. Reprobation can change. Unreasonable ishalso: disrupt the ‘nerve of church discipline.’ E.g. lay judges on tribunals ousted by 1917 code. Contrary to immunity and liberty of the church…. As if…. Leaders decide reasonableness.
- 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. Consuetudo is a practice that is introduced with the intention of introducing 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't mean just uniformity. Customs may foster unity through different practices. This leaves him a margin of appreciation.
- 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 interpret because they are law. Customs beyond are particularly useful. Optional practices and contrary practices are less useful.
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 Decrees and Inst
|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, for a community capable of receiving law. Even the law isn’t specific 455§1 includes executive acts in decrees via Authentic Interpretation. E.g. Bishop can make law for a diocese, but pastor of parish doesn’t have legislative authority. As laws, decrees are subject to title I above, not this title III
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 which are generally use of temporal goods: e.g. canons 638 and 1277. Executive is day to day activity of applying laws which may at times be quasi-legislative or quasi-judicial. This canon regulates the quasi-legislative function. Roman congregations issue general executory decrees, not laws. Thus they depend on the laws, and are interpreted according to c31-33. Though they are not laws, they are promulgated like laws and have a grace period before application, like laws.
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's term, unless specifically so stated.
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. Like POMS in the US.
- Ratzinger used the instruction a lot, it is used a lot in current Roman practice. Theoretically, instructions clarify and elaborate the law for executors and oblige executors. Issued by executors for other executors, not for the people or for clerics. In the 60s, there were even secret instructions. It cannot be more than explanation of what is already there, so it can't narrow or limit rights. It is an inferior document, and isn't necessarily even a public document. Recently, however, the instructions are being approbata sub forma specifica. Some argue the approval change the nature of the document to be a law disguised as an instruction. In the past documents are sometimes used for other purposes. E.g. Pius X Pascendi condemned the ideas of modernism in a encyclical. However, technically, it remains an instruction but with the formal support of the pope. It may be a technique to support a particular application of the law - it may add a quality seal on the document. It may seem softer than a stricter law.
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 Norms
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't have the information to respond to this.
- 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, etc, but the time comes to act, you can call to verify that it was issued.
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, not personally.
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; the rescript grant dispensation or privileges. SD and SP in this Ch..
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) English Latin 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.
- 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't apply to you ever - Dispensation means the law applies to you, but in this particular case, there is a relaxation of the law.
- 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 (privilegium fori). Cardinal Joos - parish priest, ecclesiastical judge, appointed cardinal because he was a friend of the pope. The stress killed him, but in the interim, he was outside the law of the local bishop.
- 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, there is almost a presumption of abuse.
Ch. IV: Privileges
Ch. V: Dispensations
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, procedural or penal law. Reserved powers: 20 situations, but authentic interpretation is expanding the list. Any ordinary, not just bishop, can grant (1) if recourse is difficult [not impossible but more than inconvenient] (2) if there is harm in delay and (3) Holy See usually grants. Confidentiality is paramount, so use of fax, e-mail is considered to public. Holy see regularly dispenses age, retroactive validation, law of alienation; doesn’t easily dispense celibacy, solemn profession, apostasy and almost never episcopal ordination, irregularity of abortion or consanguinity in a direct line. Authentic Interpretation
Canon 88 Competence. Broader than above. But singular person or community. Episcopal conferences don’t give laws, but general executory decrees. 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, rules govern internal governance. A general framework for statutes that still have to be worked out - these are the minimum requirements, but they are more explicit in Canon 298.
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
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, over 7 presumed to have the use of reason - bound by merely ecclesiastical laws. 5 elements affect personhood: age, mental condition, residence legal relationship and rite. Other age canons include: bishop, married deacon and diocesan administrator 35, VG, JV and EV 30, Priest 25, final religious profession 21. Marriage 14 for women, 16 for men. Relevance of age of majority isn't as important in church law as in secular law.
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:
|peregrinus||out of domicile and quasi-domicile||traveler|
|vagus||no domicile or quasi-domicile||homeless|
Canon 101 Place of Origin §1 Place of origin of child - parents home, or mother's home. Neophyte adult baptized < 3 years. §2 Place of origin of child of transients: birthplace, abandond child: place child was found.
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, and a domicile if emancipated in civil law.
- §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, one acquires a pastor and ordinary. Transients have pastor and ordinary of residence. Also access to courts.
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't constitute enrollment.
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't have legal personality. As individuals, they can act, but they don't act as the parish.
- They may be given to a private association.
Canon 114 Creation
- §1 Aggregates of persons or things / alignment with Church's mission / transcends individual person / constituted by law (de jure) or decree (ab homine). Confers canonical status on a moral person. De jure: dioceses, parishes, religious institutes and provinces and houses, seminaries, ecclesiastical provinces episcopal conferences, public associations of the faithful. No canon explicitly confers juridic personality on secular institutes, but it can be inferred. Colleges, universities, hospitials, etc. acquire juridic personality by decree. Competent authority is not specified, though analogy from public associations of the faithful seems to be Holy See, episcopal conference or diocesan bishop.
- §2 Works of piety, of the apostolate or of charity, whether spiritual or temporal.
- §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, the Parish is not the aggregate of the parishioners. A parish has a substratum of a moral person or group of people.
- §2 Aggregate of Persons Universitas Personarum must be at least three, it is collegial if the members decide its conduct by participating together in making its decisions; otherwise, it is non-collegial. Examples of collegiality are bishops conferences and religious institutes. Non-collegial are parishes, dioceses and the Holy See.
- §3 Aggregate of Things Universitas Rerum may be spiritual or material, directed by one or more physical persons or by a college.
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's teaching on the right and duty of the Christian faithful to engage in apostolic action and to organizations for this. The difference is a in the relationship with the hierarchy. In the name of the Church is code for under the close supervision and direction of the hierarchy. Private has its statutes approved, but then enjoys more autonomy of action, its goods are not ecclesiastical goods. Public/private distinction is like Governmental/NGO distinction. Like public / private sector, not like public / private corporation in the US. It is a a distinction in roman and european law, not in anglo-american law.
Canon 117 “No aggregate of persons or of things seeking juridical personality can acquire it unless its statutes are approved by the competent authority.” Not required in the old code, so existing juridic persons often don't have statutes. Also what about juridic persons erected as a matter of law. They should have statutes, but if they don't?
Canon 118 Agents Those acting for the juridic persons are those competent in law or in the statutes. Sometimes, the civil structure doesn't match the canonical structure, so that E.g. bishop acts for parishes, instead of the parish priest.
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.
- Authentic Interpretation: On third ballot a relative majority wins. 1990
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, (public juridic persons) competent authority is to protect before all else, 1. intention of the founders and donors, 2. acquired rights and 3. approved statutes. Through an executor ensure 1. equitable and just distribution of divisible goods and rights, debts and obligations, and 2. that indivisible use and usefruct and obligations of indivisible goods accrue and are imposed in equity and justice. Prior law and Eastern code allows division of territory, but not of the juridic person itself. Third party benefactors, e.g. foundations are not divided with the division of the juridic person, but would be taken into account as an external circumstance in the distribution of assets and liabilities. Final decision is not by mutual agreement within the juridic person and the new subdivisions, but by the competent authority.
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, e.g. college or foundation. It has been interpreted that it goes to the one with authority to erect or suppress. But it could be problematic if a Juridic person is erected by bishop but sponsored and staffed by religious institute.
Title VII: Juridical Acts
- 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: e.g. writing, in person, etc. §2 presumption of validity. However, may be wrong: intended will may diverge from manifested will: dissimulation. E.g. zombie.
- basic elements for essentially constituting the act which is not itself defined. Some of these elements are dealt with more extensively in marriage law.
Canon 125 Force and Fear
- Irresistable force absolutely invalidates, grave fear or malice (dolus - fraud) make rescindable. Civil law may trump if for example a contract is involved.
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.
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, but generally these issues would be decided judicially - often this would be in a diocese. But it is also the possible that the bishop is the malfeasor - so then this must be taken to Rome. Even damages could be given, but on what would that be based. (This is a novelty in the 1983 code.)
Title VIII: Power of Governance
- Separate books in the code are on teaching and sanctifying munera, but nothing on the ruling function. This on governance doesn't correspond to the jurisdiction, nor does it use the language of munus. There is ongoing ambiguity in sorting out power, ordination, and governance in the church in a manner consistent with Lumen Gentium's universal call to mission. This is linked to the power of ordination. Proper power comes with the office, delegated is given personally, generally this is executive power - can't hand over a legislative power and judicial power in a limited way. E.g. Vicar General has proper power, but may get further delegated power. Delegation to lay people is impossible unless dispensed.
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't say that lay are not.) §2 Laity cooperate (not participate) in the same power. Roman school - laity have always exercised jurisdiction and can still do so. Munich school - priesthood is one, and therefore laity are excluded from jurisdiction. There still exist examples of lay offices with the power of governance: finance officer, finance council, lay parish administrator, judge, promoter or defender.
Canon 130 Internal and External Forum Governance concerns the external forum, but is sometimes exercised for the internal forum. Law prefers to act in the external verifiable forum. Internal forum is sacramental and non-sacramental.
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 Faculties Delegated power that subsequently runs with the office. Generally VG and EV have habitual faculties granted by the Holy See to a bishop.
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, Executive and Judicial
- §1 Power of governance is distinguished as Legislative, Executive and Judicial. Distinguished, not divided.
- §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). Lower legislator can't make a law which is against the law of a higher legislator.
- §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 Generally executives have power over subjects, even outside territory, and those in territory for favors, universal law or binding particular law.
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, unless specially prohibited. §3 Ordinary power can be subdelegated only if original was delegated for all cases, if original delegation was for one case it can't be subdelegated. §4 Subdelegated power can't be subdelegated again, unless expressly granted. Subdelegation must be within the scope of the delegation.
Canon 138 Interpretation Broadly delegated power interpreted broadly. Delegation includes what is necessary to exercise delegation.
Canon 139 Several Competent §1 Generally if a person approaches one of several competent to act, it doesn't suspend the executive power of the others. §2 Lower authority shouldn't intervene in case submitted to higher authority except in grave and urgent cases.
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't wish to carry it out. §2 If several are delegated collegially, all must proceed according to canon 119, unless otherwise provided. §3 delegated power is presumed in solidum.
Canon 141 Successive Delegation First delegate, or specific delegate has priority.
Canon 142 Cessation §1 Delegated power ceases by: 1. fulfillment, 2. expiration under it's terms: time, cases, purpose 3. revocation communicated to delegate, 4. resignation accepted by delegator. It doesn't cease when delegator's authority ends unless stated otherwise in the delegation. §2 A delegated act in the internal forum placed inadvertently after cessation is valid.
Canon 143 Cessation of Ordinary Power §1 Ordinary power ceases with the loss of office. §2 If recourse is made on loss of office, the person holds the office, but cannot act validly till the matter is resolved. Acts placed would be valid but illicit, unless otherwise provided.
Canon 144 Error and Doubt Church supplies the lacking power in cases of error and doubt. E.g. when it is not clear if a person can hear confession, or do a wedding. God supplies as well even beyond the code and the church.
Title IX: Ecclesiastical Offices
- Ecclesial Office is a function established in a stable manner. Ordinations were 'relative ordinations' meaning they were tied to a particular place and/or office. Later benefice or source of income was attached to the office, e.g. vineyard. In the Middle Ages, began absolute ordination - i.e. not attached ot a place. There was also the rise of mendicant orders, and the lay investiture controversy. 1917 code restricted offices and power of orders to clergy. Vatican 2 disentangled benefice from office and encourage lay persons to be entrusted with offices. The section on office was also moved from the section on clergy where it was in the 1917 code to the general norms.
- 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 - officium - is composed of one or more munera. But the acolyte is an office with only one task, also a ministerium. An office in Belgium is youth pastor. There are borderline cases, the office created by the bishop is at odds with universal law - e.g. the moderator of the tribunal. Officialis has to be a priest, but not the moderator - the officialis has to do the functions required by the code, the moderator can do the other functions. This will happen, so it is better that it is created formally. Another solution is that in Flanders there is only one interdiocesan tribunal with five locations. These are ways of working with the reality of the situation and the demands of the code.
- 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. Others may be erected, e.g. diocesan offices.
- Office is stable, i.e. objectively the office outlasts the officeholder and subjectively, the officeholder's tenure
- 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, canonists.
- 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 Proper appointment required for validity of acts of the office.
Canon 147 Methods of Provision Provision is through 1) free conferral 2) presentation installation 3) confirmation or admission; 4) election and acceptance. The candidate must be selected, the office conferred and accepted. In conferral, the same person selects and confers, in presentation / installation and confirmation, one selects, another confers. In election, the body may confer, or another authority may confer. Erdo finds other ways of provision, e.g. prescription. 1917 code tried to give the pope all authority in free conferral.
Canon 148 Competent Authority Provision is made by the one who can erect, change and suppress the office. Other arrangements cna be made, e.g. a bishop could establish an office in a parish, but give the pastor the right to name people to the office.
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', and this requirement can be dispensed.
- §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, some say implicit qualifications may be 'express'. If the office is invalidly received, the acts of the officeholder are invalid.
- §3. Provision based on simony is invalid.
Canon 150 Full Care of Souls Offices entailing full care of souls and priestly orders - only to priests.
Canon 151 Vacancy Offices entailing care of souls should not remain vacant without a grave cause. No sanction, and the one conferring determines the grave cause.
Canon 152 Incompatible Offices Can't make incompatible appointments, e.g. conflicts of interest. Second appointment is valid but rescindable.
Canon 153 Availability §1. Appointment of a second person to an office is invalid (not validated by subsequent vacancy). §2. Appointment 6 months before expiry of term takes effect when term expires. §3. Promise of office has no juridical effect. Practice of moving several pastors at the same time is problematic because the offices aren't vacant, promises are ineffectual, etc.
Canon 154 Illegitimate possession Someone can be appointed to an office illegitimately possessed by another. Must declare illegitimate possession and make appointment.
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 Provision must be in writing - generally considered for proof, not for validity.
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 Present to the conferrer within 3 months of vacancy, conferrer can consider only those presented. There is no time limit for the conferral of the office. §2. If a group presents, they are to elect.
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 Election is to be 3 months from the vacancy, otherwise the confirming authority can freely provide. The group's own law may provide for a different time, or another confirming authority. Sometimes there is no specification of authority competent to act. See 413.2, 452.1.
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 Persons can vote only once, even if they hold several titles.
Canon 169 Validity of Election Only members of group or college can vote. Otherwise invalid.
Canon 170 Actually impeding freedom of election invalidates. Punishable under canon 1375.
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 Compromise ceases and right returns to original electors when 1. revoked before action; 2. conditions not fulfilled, 3. election was null.
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
- 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.
Canon 184 Loss of Office §1. Loss of Ecclesiastical Office by (death) time, age, resignation, transfer, removal or privation. §§2. Death of conferror doesn't cause loss of office, nor by disability or incompetence. §3. Should notify conferror. 1740 gives specifics for removal and transfer of pastors.
Canon 185 Emeritus Emeritus can be conferred on those who age out or retire. Bishop is automatically 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.
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, in writing or orally with two witnesses. §2. Authority shouldn't accept a resignation without a proportionate cause. §3. If acceptance is required, it must be within three months (in writing), or the resignation lapses, if no acceptance is required, it is effective when received (though a resigner could specify the time of effectiveness). §4. A resignation can be revoked until it takes effect.
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 Removal by Decree of competent authority.
Canon 193 Manner §1. In indefinite term, only for grave cause, according to lawful process. §2. Likewise for removal before teonferred at prudent discretion can be removed for just cause. §4 Removal to be in writing with cause stated.
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's acts are valid till the declaration is received.
Canon 195 Support Provides for support for a suitable period.
Art. 4: Privation
Canon 196 Penalty Privation is penal removal and must be done according to the norm of law. Permanent penalty requires judicial process, not just adminstrative decree. Privation is a grave penalty. Can't be latae sententiae (incurred without a decree).
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 Church follows civil law of the jurisdiction, except as provided here and in canons 199, 1492, 82, 1269, 1270, 1362, 1363, 1621)
Canon 198 Good Faith Prescription requires good faith. In US law, mere avoidance of fraud is sufficient. Good faith not required for the lapse of time for criminal prosecution in 1362. This removes much prescription - the church chooses for good faith over certainty.
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's faithful - e.g. right to worship in one's own rite 214, Sunday and penance obligations 1247, 1249.
- 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's faithful could not be visited by an ecclesiastical authority and would no longer be subject to any authority. Protects the unity and communion of the church.
Title XI: The Reckoning of Time
Canon 200 General General norms govern reckoning of time, unless the law being applied has an exception.
Canon 201 Continuous and Useful Time Tempus continuum is uninterrupted. Tempus utile is available time, which may be interrupted by unawareness, illness, closed offices, etc. Some canons specify tempus utile, if the canon is silent, it would seem tempus continuum is intended, though the contrary could be argued, particularly if there is a limitation of rights. An interruption in tempus utile results in the addition of a full day, even if the interruption was just a few hours.
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.