Flashcards in General Norms 1 Deck (92)
Law (general definition)
A binding norm duly promulgated by a competent legislator to a community capable of receiving a law which has as its purpose the common good.
Law made for the Latin Church by the Supreme Legislator which bind those for whom they were made wherever they go. These laws might not be binding due to: (1) A contrary custom (2) a contrary particular law, not expressly revoked, which was in force before the universal law went into effect (3) an apostolic privilege (can 76) or other apostolic indult (4) a dispensation for a particular case (can. 85).
Personal Particular Law
Particular laws given by a competent legislator for non-territorial defined groups of people who are capable of receiving law which bind the person, whether physical or juridic, wherever they go. Exs. Institutes of Consecrated Life, Societies of Apostolic Life, personal prelatures, and associations of the faithful.
Territorial Particular Law
particular laws given by a competent legislator for ecclesiastical territories which bind all those for whom it was issued. It generally only binds those with domicile and quasi-domicile while they are present in the territory unless those laws (1) provide for public order (2) determine the formality of acts (3) regard immovable goods located in the territory.
Those outside their domicile or quasi-domicile [for less than 3 months]. They are not bound by the particular laws of their territory as long as those laws (1) are not personal (2) the transgression of those laws do not cause harm in their own territory. They are not bound by the particular laws of the territory in which they are present unless those laws (1) provide for public order (2) determine the formality of acts (3) regard immovable goods located in the territory.
Those who have no domicile or quasi-domicile. They are bound by both universal and particular laws which are in force in the place where they are present.
The law of God binding all people. It can be positive [expressed] or natural [innate].
The law of the Catholic Church which binds only Catholics which is created, abolished, and dispensed by a competent authority.
GS 26 says that the common good is "the sum total of the conditions of social life enabling groups and individuals to realize their perfection more fully and readily."
A norm introduced by a community for itself which they intend to be binding. Does not become law, but can obtain the force of law if the proper conditions are met. Customs can be universal or particular.
A custom that has been observed for at least 100 years. Can prevail against clauses prohibiting customs per cc. 5 and 26.
A custom that has been observed for as long as anyone can remember. Can prevail against clauses prohibiting customs per cc. 5 and 26.
A custom which the community does not consider to be binding
Factual Custom (custom of fact)
A custom which the majority of the community considers binding, but does not have the force of law. Can be removed by any competent superior.
A custom which has the force of law. Can only be removed by a contrary law or custom.
A situation in which the law says nothing about the specific matter regulated by the custom.
A situation in which the custom conflicts with what the law states
Conditions for Establishing Custom
1. Specific approval: A custom can become a legal custom if: specifically approved by a competent legislature [the legislator must be equal to the breadth of the custom. ie. universal legislator for a universal custom etc...]. This can be done expressly by explicitly stating this in a public document, or tacitly, by being aware that a custom exists and doing nothing to eliminate it.
2. Legal Approval comes when the following conditions are met: (1) The custom must be reasonable (ie. not expressly reprobated in law, not contrary to faith and morals, not contrary to common good, etc...) and cannot be contrary to divine law. (2) the community must be capable of receiving a law [lex] and must intend to introduce a normative practice [ius] (3) the custom must be observed for thirty continuous and complete years (4) the custom must not be reprobated by the competent authority. At this point, the custom is no longer a custom of fact, but has become a legal custom.
3. If a law prohibits a contrary custom from forming in the future, it could not attain the force of law unless it was legitimately observed for one hundred compete and continuous years (centenary) or as long as anyone in the community could remember (immemorial). NB: A prohibition on future customs does not effect legal customs which already exist but it does effect factual customs already in existence which have not yet attained the force of law.
Continuity of a custom is broken by
(1) the majority of the community ceases to observe it for a time (2) the custom is continuously observed but for some of that period the community does not consider it normative (3) the custom is expressly disapproved by legitimate ecclesiastical authority
Communities Capable of Receiving Law (Lex)
(1) Juridic Persons (2) Communities and Institutions who have been juridically established in some way and are subject to ecclesiastical regulation and supervision (3) homogenous groups of people who belong to entities in (1) and (2). In short, it has to be a group juridically tied to the Church and subject to supervision by someone with legislative authority.
Complete revoking of a previous law.
Partial revoking of a previous law
Certain laws of respective civil jurisdictions that bind citizens of the state.
Canonization of Civil Law
Can 22. The acceptance of effects of civil law within the canonical system when provided for by canon law. Seen most strongly in management of Temporal Goods. (Also can. 1290 with contracts)
Doubts of Law (dubium iuris)
A doubt which occurs when it is impossible to achieve moral certainty concerning the laws (1) meaning (2) applicability in a particular case (3) force.
Doubts of Fact (dubium facti)
A doubt about some concrete fact that pertains to the law's applicability such as age, validity of the sacrament received, etc... Ordinaries may dispense from laws if there is a doubt of fact provided that, if it concerns a reserved dispensation, the authority to whom the dispensation is reserved normally grants it.
Promulgation of Law
The formal act of publication of a law. If this is omitted or done invalidly, the law has no effect and cannot be enforced.
Those elements which determine whether a juridical act is efficacious and produces the desired result.
Those elements which determine whether a juridic act is legally allowed by law.
Lack of knowledge.
This term applies to both laws and the administrative acts which provide for the execution of laws (general executory decrees). General decrees which are laws are issued by a competent legislator by way of a common prescript for a community capable of receiving law.
General Executive Decree
These do not create new laws, but rather specify the law or urge its observance. They are issued in the same way that law is promulgated by an executive authority, and bind those obliged to observance of the law. They do not derogate from laws, and cease to have force when (1) they are revoked by competent authority (2) law ceases (3) if provided for, the authority of the one who issued it ceases. Ex. Complementary Norms.
The action of governance which carry out the day-to-day application of abstract norms to the concrete circumstances of ecclesial life, apart from those activities entrusted to the courts.
Instructions are issued by a competent executive authority in order to explain how the law is to be applied in practice. They are issued to and binding on those who execute laws. They do not derogate from laws, and any contradictions must be reconciled in favor of the law. They lose force by revocation of the competent authority who issued them or the cessation of the law for which they were issued. Ex. Dignitatis Conubii.
Singular Administrative Act
A juridic action issued by someone with executive authority within the limits of their authority. There are 3 general types: (1) decrees (2) precepts (3) rescripts.
A singular administrative act issued by a competent executive authority which communicates decisions (which resolves a controversy) or makes a provision. In short, it is the concrete application of the law to a particular situation.
Decree by provision
Decree issued on the initiative of the competent authority. For example, a decree issued in order to fill an office which is, or will be, vacant. Provision in this sense is broad, referring to an administrator's responsibility to provide for the specific needs of the community.
Decree by decision
Decree issued in order to communicate a decision which solves a controversy against diverging opinions. Ex. Issuing an administrative decree to resolve a dispute regarding a pastor's rights.
A decree (single administrative act) which imposes an injunction in order to bring about observance of the law. (It orders a specific person(s) to do or not do something, in order to observe the law.) It must be imposed directly (not through mediation) and legitimately (ie. competent executive authority, done according to the norms of law etc...). Ex. Penal precept or admonition.
A single administrative act issued in writing by a competent executive authority which answers a request for a favor, that is, a request for some juridic action to which the petitioner has no legal right. Includes 3 categories and one other item by similarity. (1) Privilege (2) Dispensation (3) Other Types of Favors such as Indults. NB: Licenses are handled like Rescripts although they are different in that the person does have a right or quasi-right to a License.
Rescript (5 essential elements)
competence, matter, recipient, execution, and cessation. [Can't make Robb eat crud]
Examples of "other favors"
indults, petitioning for an honororary degree from an ecclesiastical faculty, requesting a papal blessing, requesting an indulgence, etc...
Formalities of a Rescript
Should include (1) the precise request desired (2) the worthiness of the recipient (3) the concrete reasons applicable for this particular case (4) any supporting testimonials (5) appropriate conclusion
Withholding of the truth. Source of possible invalidity for rescripts
Statement of falsehood. Prevents the validity of a rescript if no proposed motivating reason is true.
A favor granted by a legislator, or an executive authority with delegated legislative authority, given through an administrative act to a particular physical or juridical person which establishes private law for the recipient. A privilege can be perpetual.
Types of Privilege
Perpetual; Personal (follows the person, whether physical or juridic, and ceases with their death); Real (attached to a thing or place); Local (local privledge revives if the place is restored within 50 years).
6 ways of losing a privilege
(1) revocation [c. 79] (2) renunciation [c. 80] (3) expiration [c. 81] (4) prescription [c.82] (5) cessation [c.83] (6) privation [c.84]
The relaxation of an ecclesiastical law on the part of competent executive authority, or those who posses this authority by law or by delegation.
Diocesan Bishops can dispense
Universal or particular laws which are ecclesiastical or disciplinary unless they are reserved to the Holy See. Excludes, penal law, procedural law, and constitutive elements.
Laws of an episcopal conference
Are equivalent to general executory decrees (cc. 31-33).
Other Types of Rescripts
Indults, favors, indulgences, etc...
A special favor or privilege given for a determinate period of time. [Different from a privilege which is generally given in perpetuity.]
Is a permission, the faculty of doing or omitting something which is not permitted in an absolute manner but conditioned by the consent of the lawful authority. This is handled under the same laws as rescripts, but is not a rescript in the full sense of the word because it is not a grace in the full sense, but a request for something to which the person already has a right or quasi-right.
The extension of a power given by a superior who has jurisdiction in the external forum to an inferior so that they may do something validly or licitly which, by its nature or a positive reservation, belongs to a higher superior.
Ordinances established according to the norms of law which describe the nature of an association [whether it is an aggregate of persons or of things].
Rules of Order (ordines)
Rules or norms which govern the internal life of an association with regard to meetings and other ways of proceeding. Ex. Robert's Rules of Order.
aggregate of persons
aggregate of things
manner of acting
agenda / way of proceeding
Acquired Rights (iura quaesita)
A right that is not an innate right or a legal right, which is acquired by a physical or juridical person through various means. Ex. rights gained through administrative acts, promise to marry, vows and oaths, etc... NB: Can 4 says that acquired rights and privileges gained prior to the 83 code are still in effect unless expressly revoked, which the 83 code never did.
Administrative Acts in Written Form
Generally, administrative acts which regard the external forum must be in writing for liciety (c. 37; 51). This also counts for the acts of execution for acts given in commissorial form. The exception for needing to follow written form is seen in c. 55. But, a provision for an ecclesiastical office must be issued in writing (can. 156), and a decree of removal must be issued in writing to have effect (c. 193 §4). Curial acts must be signed by the Ordinary for validity and by the chancellor of the curia or the notary for liciety (c. 474).
The execution of an administrative act by another person who was been so delegated by the administrator.
Someone entrusted by an administrator with an administrative act for its application or execution. By application is meant the notification of the interested party. By execution is meant the issuing of a decree of execution (c. 37).
Authentic Interpretation of Law
Done by legislator or by someone given the power by the legislator. It has the force of law and can be retroactive if it is merely declarative. It Can be Declarative, Restrictive, Extensive, or Explanatory. See canon 16
Declarative Authentic Interpretation
Affirms the meaning of the wording of the law that was already certain. Is retroactive because nothing has changed.
Explanatory Authentic Interpretation
Explains the meaning of a doubtful law without extending or restricting its original meaning. Is not retroactive in respect to the part of the law which was explained.
Extensive Authentic Interpretation
Broadens the meaning and applicability of the law beyond what is included in the text of the law. Is not retroactive for the part of the law that was changed.
Restrictive Authentic Interpretation
Narrows the meaning and applicability of the law. It is not retroactive in respect to the part of the law that was changed.
Authentic Interpretation of Divine Law
Interpretation of Law
Can be Extensive, Broad, Strict, or Restricted.
Broadens the meaning and applicability of the law beyond what is included in the text of the law.
Widens the applicability of a law to all possible cases that can fall within its meaning.
Limits the laws application to the minimum stated within the law.
Narrows the meaning and applicability of the law.
Expressed vs Tacit
Expressed refers to verbal expression of an opinion. Tacit refers to non-verbal expression of an opinion, for example knowing about something and doing nothing to oppose it.
Explicit vs Implicit
Explicit means to express without vagueness or ambiguity, to clearly formulate and define. Implicit refers to something implied or understood without being directly expressed.
The power to make laws.
The power to pass judgement in a court of law.
The power to govern
There is a hierarchy of legislators with higher legislators having competency over others with lower legislative authority. Lower legislators cannot overturn laws given by higher legislators unless this is allowed by the law. Exs: Pope; College of Bishops; Particular Council; Conference of Bishops; Diocesan Bishops; Ordinaries.
Suspensive period before a law takes effect
Invalidating Laws (leges irritantes)
Laws which establish the necessary requirements for a juridic act.
Disqualifying Laws (leges inhabilitantes)
Laws which establish the necessary qualifications required of a person to validly perform or benefit from a juridic act.
Phrases for Validity and Capacity used in the Law
capax esse; dirimere; habere effectum; obtinere effectum or sortiri effectum; incapax; inhabilis; invalidus; irritus; nullus; valide; validitas; validus; vi carere; vim habere; vim non habere; vitiare. ?Non potest?
Lacuna in the law are to be resolved (1) In light of analogy to similar laws (2) General principle of Laws applied with canonical equity (3) jurisprudence and praxis of the Roman Curia (4) Common and constant opinion of learned persons.
When can you apply canonical equity?
You can dispense an Ecclesiastical law [never divine] per epikeia when (1) It is reasonable and just (ie not divine law) (2) There is a grave need (3) There is no ability to contact the ecclesiastical authority (4) You are dispensing something that would commonly be dispensed. [Cf. can 1752]