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1

1. What other sources of law exist beyond the 1983 Code of Canon Law (cc. 1-2)?

[1] CCEO – 21 Other Sui Generis Churches

De Bertolis: Recall that the Emperor Theodosius divided the empire in 395. The CCEO was promulgated in 1990.

[2] Liturgical Law

De Bertolis: This does not mean that liturgical law is separate from the CIC in such a way that they form two species of law. Liturgical law is true law.

2

2. What things are not abrogated by the 1983 Code of Canon Law (cc. 3-5)?

[3] Conventions with other nations or political societies
Pacta sunt servanda

[361] What is the ApSee: “Nomine Sedis Apostolicae vel Sanctae Sedis in hoc Codice veniunt non solum Romanus Pontifex, sed etiam, nisi ex rei natura vel sermonis contextu aliud appareat, Secretaria Status, Consilium pro publicis Ecclesiae negotiis, aliaque Romanae Curiae Instituta.”
[377.5] Future civil authorities lose their rights in regard to bishops: “Nulla in posterum iura et privilegia electionis, nominationis praesentationis vel designationis Episcoporum civilibus auctoritatibus conceduntur.” This is stated very similarly in Christus Iesus, 20. (VatII, AD 1965)

[4] Acquired rights and privileges granted to physical or juridic persons by the ApSee before CIC83 that are in use and are not expressly revoked by the canons of the CIC/83.

There are no such examples of acquired rights being expressly revoked, BTW.

Examples of revoked privileges:
[396.2] “A bishop is permitted to choose the clerics he prefers as companions and assistants on a visitation; any contrary privilege or custom is reprobated.”
[509.1] “After having heard the chapter, it is for the diocesan bishop, but not a diocesan administrator, to confer each and every canonry, both in a cathedral church and in a collegial church; every contrary privilege is revoked.”
[526.2] “In the same parish there is to be only one pastor or moderator in accord with the norm of can. 517, §1; any contrary custom is reprobated and any contrary privilege whatsoever is revoked.”
[1019.2] “The law for secular clerics governs the ordination of all other candidates of any institute or society; any other indult granted to superiors is revoked.”

De Bertolis: Acquired rights are not the “innate” rights that come from Baptism, per c. 96, nor those that come from the law, e.g., Mass offerings at 945.1. They also do not refer to rights from juridic capacity, e.g., c. 642,, nor the expectation of law, e.g., c. 197 (the acquisition of property by prescription).

[5.1] Centenary or immemorial customs whose removal would harm the community
Those which the code expressly permits to continue
[1279.1] “The administration of ecclesiastical goods pertains to the one who immediately governs the person to which the goods belong unless particular law, statutes, or legitimate custom determine otherwise and without prejudice to the right of the ordinary to intervene in case of negligence by an administrator.”
[1263] “After the diocesan bishop has heard the finance council and the presbyteral council, he has governance; this tax is to be proportionate to their income. He is permitted only to impose an extraordinary and moderate exaction upon other physical and juridic persons in case of grave necessity and under the same conditions, without prejudice to particular laws and customs which attribute greater rights to him.”

[5.2] Presently existing customs (univ or part) that are apart from the law

Canons that are abrogated:
[396.2] “A bishop is permitted to choose the clerics he prefers as companions and assistants on a visitation; any contrary privilege or custom is reprobated.”
[423.1] “One diocesan administrator is to be designated; any contrary custom is reprobated. Otherwise, the election is invalid.”

De Bertolis: Recall that customs are fonts of law. There is no distinction here between universal and particular customs.

3

3. What things are abrogated by the 1983 Code of Canon Law (c. 6)?

[6.1] CIC/17
Universal and particular laws contrary to CIC/83
All penal laws not in the CIC/83
All disciplinary laws that the CIC/83 reorders ex integro

De Bertolis: Canons 1-6 are transitional canons, seeking to stabilize the CIC/83 with its antecedents.

4

4. The word "law" is not defined explicitly in the code. What is a law?

4. The word "law" is not defined explicitly in the code. What is a law?

A law is a binding norm duly promulgated by a competent legislator for the common good of a community capable of receiving a law.

St. Thomas (ST I-II, 90.4): an ordinance of reason for the common good, made by him who has care of the community, and promulgated. (rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgata.)

Thomas: rationis ordinatio ad bonum commune, ab eo qui curam communitatis habet, promulgat (ST, I-II; 90;4, respondeo)
• Natural Law?
Natural Law: As distinct from revealed law, it is “nothing else than the rational creature’s participation in the eternal law” (Summa Theologica, 1a, 2ae, quest. 91, art. 2). As coming from God, the natural law is what God has produced in the world of creation; as coming to human beings, it is what they know (or can know) of what God has created.
It is therefore called natural law because everyone is subject to it from birth (natio), because it contains only those duties which are derivable from human nature itself, and because, absolutely speaking, its essentials can be grasped by the unaided light of human reason.

5

5. What is meant by divine law? natural law? positive law? merely ecclesiastical law?

Divine Law: from God
Natural Law: known by reason alone
Positive Law: law which enjoins, either divine or man made
Eccl Law: positive law that is neither natural nor divine law

6

5.2 Who are the passive subjects of law?

[7] A community capable of receiving law

7

6. How is a law promulgated (c. 8)?

• For universal laws, vacatio = 3 months (from the date of issue in the AAS)
• For particular laws, vacatio = 1 month (from the date of promulgation)
• There are generally several stages of a law’s coming into being:
1. Preparation of the text of the law
2. Approval of the text by the legislator and its issuance on his authority
3. Promulgation
4. Vacatio legis
5. The date that the law begins to bind
• Usually universal laws are promulgated in the AAS (but pope can choose other means, e.g., L’Osservatore Romano)
• Particular laws are promulgated by whatever method the legislator chooses (e.g., local bishop could use diocesan newsletter, could send it to all parishes and juridic persons, etc.)


De Bertolis: The active subject of universal ecclesiastical laws can be the Roman Pontiff or Ecumenical Council. The active subject of particular laws can be pontifical Legates, Roman Congregations within their given limits, plenary and provincial Councils, Diocesan bishops individually or as a Synod, Capitular generals, etc.

8

7. When does a law take effect (c. 8)?

Statements of the Divine Law, authentic interpretations of laws that are merely declarative, laws requiring an immediate binding force in order that their purpose may be fulfilled, laws that are merely qualifications of or technical points about other laws, laws that are beneficial to the spiritual well-being of the faithful but do not affect the rights of third parties or require any organizational preparation or changes, and laws that revoke an earlier law that has become unnecessary or unjust as a result of a particular situation go into effect immediately.

[9] De Bertolis: Retroactivity: “In other words, a new law, which changed the previous law in regard to the validity or otherwise of an act, in line principle does not affect the validity or otherwise of the measures put in place during the reign of previous law: this is the principle of the non-retroactivity of positive ecclesiastical law.” An exception to this, c. 1313.2 says, “If a later law abolishes a law or at least the penalty, the penalty immediately ceases.”

[10] De Bertolis: Invalidating and Disqualifying Laws: These are laws that deprive a juridic act of its effects, or deprive a person of doing them validly. Their effect is the inefficacy of the act and the act’s invalidity. Invalidating laws regard the act itself. Disqualifying laws regard the actor.
Invalidating: [1108.1] “Only those marriages are valid which are contracted before the local ordinary, pastor, or a priest or deacon delegated by either of them, who assist, and before two witnesses according to the rules expressed in the following canons and without prejudice to the exceptions mentioned in cann. 144, 1112, §1, 1116, and 1127, §§1-2.”
Disqualifying: [1083.1] “A man before he has completed his sixteenth year of age and a woman before she has completed her fourteenth year of age cannot enter into a valid marriage.”

9

8. Who is bound by a law (cc. 11-12)?

[11] Ecclesiastical law: baptized Catholics, sufficient reason and seven years old

De Bertolis: From Gratian, this canon refers only to merely ecclesiastical laws, not to Divine Law or Natural Law.
[LG44.1] “Per baptismum quidem mortuus est peccato, et Deo sacratus”
[204.1] “Christifideles sunt qui, utpote per baptismum Christo incorporati, in populum Dei sunt constituti, atque hac ratione muneris Christi sacerdotalis, prophetici et regalis suo modo participes facti, secundum propriam cuiusque condicionem, ad mission emexercendam vocantur, quam Deus Ecclesiae in mundo adimplendam concredidit.”
[205] “Plene in communione Ecclesiae catholicae his in terris sunt illi baptizati, qui in eius compage visibili cum Christo iunguntur, vinculis nempe professionis fidei, sacramentorum et ecclesiastici regiminis.”
[96] “Baptismo homo Ecclesiae Christi incorporatur et in eadem constituitur persona, cum officiis et iuribus quae christianis, attenta quidem eorum condicione, sunt propria, quatenus in ecclesiastica sunt communione et nisi obstet lata legitima sanctio.”

[12] Universal laws bind everywhere those who are bound by them except in those territories that are exempt from them

Territorial laws bind those with a domicile or q-domicile while in that territory

10

9. What is the significance of identifying a particular law as territorial versus personal (c. 13)?


[13] This effects the scope of the application of the law. Personal laws bind those for whom they were made wherever they go. Territorial laws bind those with a domicile or q-domicile within that territory.

11

11. What is an authentic interpretation and who can authentically interpret the law (c. 16)?

[16] The law is officially interpreted by the legislator and by the ones to whom he entrusts interpretation (PCILT). The law is also interpreted by judges in concrete circumstances, but not as precedent. (Cf., Pastor Bonus, art. 154-158.)

• Four kinds of authentic interpretation:
1. Declarative interpretation merely affirms the meaning of the wording of the law that was already certain
a. does nothing other than affirm the meaning of the law that is clear in itself
b. has retroactive force, since no change is made to the law whose meaning was not objectively doubtful
2. Restrictive interpretation narrows the meaning and applicability of the law
a. applicability of the law is narrowed, effectively altering the meaning
b. not retroactive WRT to the part of the law whose meaning was explained or changed
3. Extensive interpretation broadens the meaning and applicability of the law beyond what is included in the text of the law
a. applicability of the law is broadened, effectively altering the meaning
b. not retroactive WRT to the part of the law whose meaning was explained or changed
4. Explanatory interpretation explains the meaning of a doubtful law, without extending or restricting its original meaning
a. is the only one that actually resolves a doubt inherent in the wording of the law (cf. c. 14). The other three respond to the question, “Does this law really mean what it says?”
i. declarative interpretation says, “yes”
ii. restrictive interpretation says, “no, the law does not included this situation”
iii. extensive interpretation says, “yes, the law must be seen as including this situation”
b. not retroactive WRT to the part of the law whose meaning was explained or changed
• to have the force of law, authentic interpretation must be put forward in the form of law and promulgated in the usual way (if not in the form of law, they don’t bind juridically)
• interpretation of a law based on divine law is always retroactive

12

12. How are ecclesiastical laws to be interpreted (c. 17)?

• canonical tradition holds in high regard the private interpretation of canon law by scholars
• the “proper meaning” is the way the word or phrase is understood in the canonical tradition
• sometimes the meaning is technical and is only familiar to canonists (e.g., lex and ius)
• Latin text is official text
• may have to find the word in other places in the law to determine context
o look first in the same book or section of the law
o look for parallel places
o consider purpose of the law
o consider the mind of the legislator (mens legislatoris = not an individual, but a construct, an ‘institutional figure’ signifying the whole institution of the law itself, the canonical system, the basic rules, values and principles that support it)
o look at the Eastern code
o other doctrinal sources

13

13. What laws are subject to strict interpretation (c. 18)?

[18] Laws that establish a penalty or restrict the free exercise or rights or which contain an exception to the law

14

14. What is a lacuna legis and how is it resolved (c. 19)?

[19] A lacuna legis is a hole in the law that occurs when an express provision or universal or particular law or a custom is lacking to provide a solution for a concrete case.

The law gives four sources that interpreters should use to seek a rule, norm, or principles to resolve the case
1. laws issued in similar matters
2. general principles of law applied with canonical equity
a. equity is a principle by which judges and superiors apply the law with mercy. They apply the law faithful to its meaning, but taking account of the concrete circumstances of the person’s life, bearing in mind the overall purpose of the law --- the salus animarum
3. the jurisprudence and practice of the Roman Curia
4. the common and constant opinion of learned persons

15

15. How are differences between earlier and later laws resolved? How are differences between universal and particular law resolved (c. 20)?

• Express revocation occurs when later law expressly states that it revokes earlier law, either explicitly or implicitly
o explicitly when it unequivocally states it
o implicitly when by using a general expression or formula it states that previous laws are being abrogated or derogated from, e.g., “notwithstanding anything to the contrary”, “anything presently in force contrary to theis law is abrogated”, or, “derogating from other laws in force”, etc.
• tacit revocation makes no mention of the fact that earlier law is being revoked
o occurs when a later law is directly contrary to an earlier law, and when a later law completely reorders the matter of the earlier law
 contrary ex: 1975 GIRM said that Alleluia before the Gospel may be omitted if not sung, but 1981 Lectionary says the Alleluia must be sung (must be omitted if not sung, and is not to be recited)
o complete reordering the entire subject of previous law
 affects the entire document, or
 may affect all or some of the norms
• e.g.: Cc. 960-963 on general abosultion reordered the 1973 Rite of Penance nn. 31-34
 may affect only one or several norms in an earlier juridical text, leaving others intact
• universal law does not revoke particular or special law unless it expressly says so
• revocation of particular law by universal law cannot happen tacitly
• nor can particular law norm be completely reordered by a universal law
• when in doubt, the particular law remains in force (cf. c. 21)

16

16. Who introduces a custom (c. 23)?

[23] Customs are introduced by the community

17

17. What is the status of a custom that has been approved by the respective legislator (c. 23)?

[23] The canon has the force of law (vim legis)

18

18. What is the status of a custom that has been expressly reprobated by the respective legislator (c. 24)?

[24] It does not have the vim legis and is not reasonable.

19

19. What is the difference between a custom praeter legem and a custom contra legem?

Praeter legem is outside of the law and so legal (i.e., not regulated by the law)

Contra legem is contrary to the law and is, by definition, illegal

20

20. Even if contrary to the law, what is the significance of the observance of a custom for 30 years or 100 years (c. 26)?

[26] Those canons obtain the force of law.

Gidi: Power of ecclesiastical governance:
Legistlative: Laws
Judicial: Sentences or Decrees
Executive: Norms (General Character) or Administrative Acts (Singular Character)
Administrative Power: This is part of the power of governance, that promotes the public good, gives determinied limits to the law, promotes the execution of law, interprets and completes laws by decrees and dispositions.

21

21. What is a general decree? Who has the authority to issue it (cc. 29-30)?

[29] General decrees are laws (so Title I applies).
Only a person who possesses legislative power can issue a general decress.

22

22. What is a general executory decree? Who has the authority to issue it (c. 31)?

[30] A general executory decree is an application of the law. It specifies law or urges its observance; it does not create new law.

23

23. Are general decrees and general executory decrees considered to be laws properly speaking?

[30-31] General decrees are laws and general executory decrees are not.

24

24. What is an instruction? How is a conflict between an instruction and a law resolved? How

J.T.M. de Agar, “Handbook on Canon Law,” p. 34,35:
“They cannot change or contradict [law], and to the extent that they do they are invalid… Instructions are rules similar to executory decrees; their typical objective is the same: explaining the provisions of laws and developing and determining the ways in which the law must be implemented, but directed to those whose duty is to execute the law, or to see that it is executed (generally to those who hold office); that is why instructions do not need promulgation.”


Gidi [33]: Revocation is direct (implicit or explicit) or indirect.

[34] Instructions are not laws and laws cannot be enacted under the title “instruction.”
Like general executory decrees, instructions are acts of executive power and are dependent on a prior law.
Instructions further specify how laws are to be applied in practice and they bind subordinate administrators who are responsible to execute or apply the law.

25

25. What types of singular administrative acts are mentioned in the code (cc. 35ff)?

[35] There are decrees, precepts, and rescripts. Decrees resolve controversies or make provisions. Precepts impose injunctions. Rescripts answer requests for favors.

Gidi: These are unilateral, singular and extrajudicial juridic acts of executive authority.

26

26. What is a singular administrative act? How does it differ from a general administrative act?

[35] An administrative act is a juridic action. It is an act performed by an administrator as a function of office and intended to have a juridic effect.
Singular administrative acts: “Decisions or resolutions taken by the authority with regard to particular cases.” (Cf., J.T.M. de Agar, “Handbook on Canon Law”, p. 38)
General: Executory decrees and instructions that are inferior to law given to enforce and specify the provisions of law.
Gidi: Interpretation: Strict is with the minimum necessary extension. Wide is with the maximum extension according to the proper significance of the words

27

27. What must a vicar general do to issue a valid singular administrative act that is contrary to a particular law in his diocese (c. 38)?

[38] The act must have an expressly added derogating clause.

28

28. What is the significance of the particles "if," "unless," or "provided that," is a singular administrative act (c. 39)?

[39] These effect conditions. For the validity of the conditions, these particles must be present. In Latin, they are si, nisi and dummodo.

29

29. Is an executor required for an administrative act issued forma gratiosa or forma commissionia? What discretion does an executor have when executing an administrative act (c. 37)?

Gidi: Ways to issue an act:
Forma Gratiosa: This is direct and immediate on the part of the authority.
Forma Commissoria: This is given in a mediated way via an executor.

Executors:
Obligations of the Executor:
He must act according to the received mandate or according to his given function. (cf., cc. 42 and 40)
He must certify the authenticity of the act (c. 40)
He must make sure that the execution of the act is not null or impossible due to conditions
He must suspend the execution if is inopportune on account of circumstances of place or persons (c. 41)
He must proceed according to the norms of the mandate, on the pain of invalidity of execution (c. 42)
Cf. also:
[43] The executor of an administrative act can, according to his or her prudent judgment, substitute another as executor unless substitution has been forbidden, the executor has been chosen for personal qualifications, or a substitute has been predetermined. In these cases, however, the executor may entrust the preparatory acts to another.
[44] The executor’s successor in office can also execute an administrative act unless the executor was chosen for personal qualifications.

30

30. What is a singular decree (c. 48)?

[48] A singular decree is:
1. An administrative act that is an action of executive authority which intends some juridic effect
2. Issued by a competent authority with legal basis for action
3. Issued according to the norm of law
4. Communicates a decision or makes a provision
5. Does not presuppose a petition or a request for action on the part of another