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Book I : General Norms

(Cann. 1 - 6) English Latin


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 doesnt 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 doesnt 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 its 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
(Cann. 7 - 22) English Latin
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 cant
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:
1 Preparation of text
2 Approval of text and issuance
3 Promulgation
4 Grace period force is suspended
5 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.
1 how can you identify a legislative text
2 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 its 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 its 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:
1 the internal decision to leave the Catholic Church; (internal forum - a
problem with doctrine, sacraments, community)
2 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?
3 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.
4 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 there is an
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.
5 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.
6 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 doesnt 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 cant be delegated except by Supreme Pontiff who can allow
lower legislators to delegate.
Four types of interpretation:
1 Declarative affirms meaning and applicability no change law is clear in
itself. Retroactive.
2 Restrictive narrows meaning and applicability changes meaning. Not
retroactive.
3 Expansive broadens meaning and applicability changes meaning.
4 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
dont 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.
Summary of Interpretations Issued
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:
1 Text and context are often sufficient for practice, but doctrinal interpretation
requires the further methods. More important than the mind of the legislator.
2 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.
3 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 laws application to the minimum stated in the
text. Interpret strictly:
1 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).
2 Exception are interpreted strictly
3 Restrictions of free exercise of rights are interpreted strictly.
It doesnt 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.
1 parallel E.g. lacuna - qualifications of lay pastoral ministers - argue from
parallel to priests, e.g. Canon 276. Argument asimilibus.
2 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.
3 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.
4 Practice of the curia isnt documented well, but can be obtained from CLSA.
It provides guidance, but isnt binding. These cant 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.
5 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 whateverbut in fact,
it's all over.
Title II: Custom
(Cann. 23 - 28) English Latin
Custom is very important. It is on the same level as the law and can go
against the law. It can be easily abrogated, but once it is there it is
formidable. Democratic mechanism in the church. It is a way of non-
reception of the law. Custom contra legis is a canonical crime-wave.
Canon 23
Custom is the unwritten law developed by the community itself. Customs
may be 1) optional non-binding, no one would object to its modification or
removal; 2) factual actually observed, and considered binding, but doesnt
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 isnt 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 3962: 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 4231 Only one diocesan Administrator is to be appointed, contrary
customs being reprobated; otherwise the election is invalid.
Canon 5262: In any one parish there is to be only one parish priest, or one
moderator in accordance with Canon 5171; 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 dont
object to derogation, there isnt the will to creat a law. Must be the practice
of the majority. CCEO doesnt 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 cant 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 dont
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 cant 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
(Cann. 29 - 34) EnglishLatin
general Cano Legislat sets a law given by a legislator made by the legisla
decree n 29 or norm Legislative power cannot be delegated.
s

general Cano Executi make a decree by which an executive gives effect to the
executor n 31 ve s regulation in US law. It can change without changing t
y decree norm It applies to all to whom the law applies. These are ofte
s distinguish from a general decree
more
precis
e

singular Cano Executi An application of law for one or a small group - bill of a
decree n 48 ve

decree in Boo Judiciar During a trial, contentious or marriage, etc. E.g. the a
the k VII y the libellus, the decree of publication. However, you c
judicial this.
sphere
* 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 isnt specific 4551 includes executive acts in decrees via
Authentic Interpretation. E.g. Bishop can make law for a diocese, but pastor
of parish doesnt 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
(Cann. 35-47) English Latin
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.
1 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.
2 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.
3 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 its 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 dont 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. Dont 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 doesnt
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
(Cann. 48-58) English Latin
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 its in writing. Appeal of
reasons is to administrators 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.
Canon 59
Usually requires a permission, Ordinary Executive power. Second paragraph
is new. Code nevertheless favors writing / record. A rescript is for a
privilege, dispensation or other favor. Privilege means this law doesn'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
(Cann. 76 - 84) English Latin
Ch. V: Dispensations
(Cann. 85 - 93) English Latin
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). bishops power of
dispensation is intrinsic to his power of governance. Cant 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;
doesnt 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 dont give laws, but general executory
decrees. Liturgical law, can dispense discipline, but not constitutive.
However, cant 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 its 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
(Cann. 94 - 95) English Latin
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 churchs mission; Constitution indicates strategies to realize
purpose; governance indicates leadership; procedure is internal and external
operations. Legitimate members implies statutes will include issues of
admission and separation. Promulgated by legitimate power and approved
(canon 117).
Canon 95 Rules of order Those who wish to participate must freely assent
to the rules of participation.
Title VI: Physical and Juridic Persons

Ch. I: Physical Persons


(Cann. 96 - 123) English Latin
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:
Incola domicile resident

advena quasi-domicile newcom


er

peregrinu out of domicile and quasi-domicile traveler


s

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 cant 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
English Latin
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
(Cann. 124 - 128) English Latin
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 isnt consent. Superior cant vote in consent. Seeking counsel neednt
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.
Authentic Interpretation
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
(Cann. 129 - 144) English Latin
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 consitution. 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.
(Cann. 145 - 196) English Latin
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.
Canon 145
Ecclesiastical office is any function constituted in a stable manner by divine
or ecclesiastical ordinance to be exercised for a spiritual purpose. All four of
the following factors must be present.
Office is a function, munus. The power to carry out the office is the ordinary
power of the office which can be exercised by the officeholder or by another
vicariously.
The office must be constituted by divine or ecclesiastical ordinance. Those
said to be of divine origin are the pope, the college of bishops and the
diocesan bishop. Some offices come into existence when a structure is
created, e.g. a diocese or province of a religious order. 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
English Latin
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
English Latin
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
English Latin
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
English Latin
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
English Latin
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.
English Latin
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.
English Latin
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
English Latin
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
English Latin
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
English Latin
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
(Cann. 197 - 199) English Latin
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:
1 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.
2 rights which can be obtained only by apostolic privilege - e.g. erection of
public associations 312, indulgences 995,
3 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.
4 the certain and undisputed boundaries of ecclesiastical territories;
5 Mass offerings and obligations;
6 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.
7 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
(Cann. 200 - 203) English Latin
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.