Canon law lecture notes for the private use of SIST Theology one students

Adnotationes Ad Usum Internum Alumnorum

Purpose of the Course

This course will serve as an introductory course to canon law for Theology One students. By
the end of the course the students should be able:

1. To describe the historical development of canon law from Apostolic times to the
present 1983 Code;

Course Description

The course will include the history of canon law, the principles of the revision of the Code
and the general organization of the Code. Book One which is entitled General Norms covers
Ecclesiastial law, promulgation, interpretations, custom, general decrees and instructions,
singular administrative acts, physical persons, persons, power of governance and
ecclesiastical offices. The Course presents the operating principles of canon law, definitions
of juridical persons, and ecclesiastical offices.

INTRODUCTION

1.The Catholic Church today has two Codes of Canon Law:

i. Codex Iuris Canonici (CIC 1983) – The Code of Canon Law governing the Latin
Church, and
ii. Codex Canonum Ecclesiarum Orientalium (CCEO) - The Code of Canons of the
Oriental (Eastern) Churches is the title of the 1990 codification of the canon law
governing the 23 Eastern/Oriental Catholic Churches (sui iuris/autonomous or
self-governing).

The Latin Code is divided into seven Books,

They contain principles of a general nature, such as canons on juridic persons,ecclesiastical

offices, prescription, etc. Some canons have "newly introduced, such as those on general
decrees, instructions, singular administrative acts, statutes and ordinances.

Third, others have "been significantly revised in light of conciliar and post conciliar doctrinal
and legislative developments of recent years.

SOURCES OF CANON LAW

1. The Sacred Scriptures -

2. Natural Law – Monogamy in marriage.

1
 3. Customs – Long standing practices within the earliest Church communities example
Sunday observance, the celebration of Easter.
4. Councils – Local and ecumenical councils are a major source of laws in the Church.
Periodic gathering of the leaders of local Churches in Synods.
5. Fathers of the Church – the writings of patristic authors were sources of ecclesiastical
regulations. They include the Didache, Jerome, Cyprain, Basil, Irenaeus, John
Chrysostom, Augustine etc.
6. Popes –The letters written by Popes on their own accord or responses they gave to
questions addressed to them on particular problems became sources of law for the
Church.
7. Bishops – Pastoral decisions taken by Bishops.
8. Rules of Religious Orders – Some Rules and regulations evolved by religious
communities became general ecclesiastical rules. These orders include Benedictines,
Franciscans, Dominican etc.
9. Civil law – Some enactments of Civil authorities like emperors amd kings became
normative in the Church.
10. Concordats - International agreements between the Holy See and other Bodies.

DEFINITION OF ECCLESIASTICAL LAW

According to St Thomas Aquinas:

Although, the Code doesn’t explicitly set out to define law, it sets out its essential
characters in some of the canons of the Code. We now take a brief look at the
characteristics of law as spelled out in the Code.

St Thomas Aquinas offers us the well-known definition of law when he said that: "Lex
est quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatis
habet promulgata" (Summa Theologica, Prima Secundae, q. 90, art. 4) 1 It means that
“Law is nothing other than a certain ordinance of reason for the common good,
promulgated by him who has care ( or is in charge) of the community.”

Elements of Law

The following elements of law could be identified in the definition of law by Aquinas:

Ordinatio: The Law proceeds from the will of the legislator; in no case is it imposed on him.

1
THOMAS AQUINAS, SUMMA THEOLOGICA, Pt. I-II, Q. 90, Art. 4 (Fathers of the English Dominican
Province trans., Christian Classics 1981) (1911) [hereinafter SUMMA THEOLOGICA]. In the original Latin:
"quaedam rationis ordinatio ad bonum commune, ab eo qui curam communitatishabet, promulgata." THOMAS
AQUINAS, SUMMA THEOLOGIAE, Pt. I-I, Q. 90, Art. 4.

2
Ratios. Law for St Thomas is something pertaining to reason (aliquid pertinens ad
rationem).2 So Law cannot be arbitrary, nor respond to an impulse coming from emotion. So
Aquinas is denying that the will of the sovereign alone is not sufficient to make a law; it is
also necessary that the sovereign’s will be in accordance with (practical) reason.

Ad bonum commune: The Law seeks the common good which is the last end of the law.
The end which reason aims at in determining the law is the common good.

Curam communitatis: The reason of any person is not sufficient to make a law, but that of
one who has coercive power. The law is the dictate of practical reason present in the prince
who governs a community.3 Competent Authority – cann. 23; 26 law is given by a
competent ecclesiastical authority. The Roman Pontiff and College of Bishops, Diocesan
Bishops, Episcopal Conferences, and General Chapters have authorities to issue laws in the
Church for the universal Church and for the juridical persons according to the law.

Solemniter promulgata. Promulgation involves making known or notifying those for whom
the law is intended. It binds those present and those absent and those who will belong to the
community in the future.

Common good –can. 25 the law is enacted for the common good of a community capable of
receiving law.

A law is therefore 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.

Essential Characteristics of Ecclesiastical Laws

Characteristics of law are generality, abstractness, stability, rationality, and enforceability or

coerciveness.

Generality – Can. 29 states that the provisions of the law are common. The law is given for
community and not for individuals. The characteristic of Generality of law is understood in
the sense that it applies to everyone without distinction, without preference or discrimination.
The opposite of a general law would be a law ad personam.

Abstractness

Abstractness indicates the suitability of the legal rule to be applied to an indistinct series of
cases, that is, to regulate categories of facts or behaviours, without reference to specific
situations or subjects. The law when promulgated does not refer to a concrete fact but to a
hypothetical series of facts. This means that, upon the occurrence of the conditions provided
for by law, the provision will always be applied.

2
Cf. Summa theologiae, I, II, q. 90, a. 1
3
Cf. Summa theologiae, I, II, q. 90, a. 1 e a. 2.

3
Stability / Perpetuity – cann. 23 – 26 says that law is common and stable. Law by nature
tends to be perpetual. But this does not mean that laws are eternal. For this reason, law can
cease to exist by explicit revocation (abrogation) or by partial derogation (partical
revocation).

Rationality - can. 24 par . 2 says that law is reasonable. Law needs to be just and in
conformity to reason.

Enforceability / coerciveness - can. 8 par. 1 stipulates that law is an obligatory ordinance.

Law is imposed by the legislator to be obeyed. It is not a mere directive or counsel. Law is
backed by coercive authority. Its violation leads to punishment.

The principle of legality in criminal law

A basic maxim in continental European legal thinking states: Nullum crimen, nulla poena
sine praevia lege poenali "No crime, no punishment without a previous penal law. The
principle of legality simply states that no one can be punished except by virtue of a law that
came into force before the fact was committed, nor be subjected to penal measures except in
the cases provided for by law.

Etymology of Canon Law

Canon comes from the Greek4 word kanon (κανών, literally straight rod) which means
measuring rod, reed, rule of faith, standard, norm or law. Canon thus means a rule of conduct.
Ius canonicum means canon law. Ius (Jus) can mean a right a privilege inherent in someone.
Jus has a second abstract sense which can mean law, rule, fair or just.

Canon law (ius canonicum5) is a body of law that is governing the Church. This is
differentiated from civil law (ius civile).

A BRIEF HISTORY OF CANON LAW

The history of Latin canon law can be divided into four periods: the jus antiquum, the jus
novum, the jus novissimum and the Code of Canon Law

First Period (IUS ANTIQUUM)

The Apostolic and Conciliar Age

Apostolic times

In the first three centuries Christians drew their rules and norms from the Gospels and Sacred
scripture especially the Epistles and the Acts of the Apostles. The Apostolic Council of
4
Greek was the language of the early Christian Church.
5
Ius canonicum was used in the 12th century to refer to the science of ecclesiastical law.

4
Antioch of 51 for example is recorded in Acts 15.23–29. Other matrimonial legislation,
excommunication, justice within a community are found in Mt 18.15–18; 1 Cor 5–7.

The Didache or the Teaching of the twelve apostles.

The Didache (Greek: Διδαχή, Teaching) also known as the Lord’s Teaching Through the
Twelve Apostles to the Nation is one of the first and most important post apostolic writings,
written about the year 100. Some considered it as part of the New Testament. This refers to
an anonymous collection of disciplinary, moral and liturgical instructions. It contains rules
on how to celebrate the sacraments and how to elect bishops and deacons. They were not
issued by any known authority but they were, composed, circulated and practiced in the early
Christian communities.

Similar to the Didache were other Collections of rules of conducts governing ecclesiastical
life in the Apostolic times. The significant ones include Traditio apostolica, Didascalia
apostolorum and the Apostolic Constitutions.

Councils and Synods

The decrees of local councils had efficacy for the local churches. The general (or
ecumenical) councils made laws for the whole church. The most significant development of
this early period of canon law was the synodal or conciliar proicess, which was modelled
after the pattern of the Council of Jerusalem. 6 From the very early church, Christian
communities gathered together to discuss problems. By mid-second century this practice had
been institutionalized. These meetings were called councils or synods. There is not much
information about synods before the fourth century.

COUNCIL of ELVIRA (Granada, southern Spain)

A Spanish Council held at the beginning of the 4th century about the year 324 to regulate
sexuality, marriage and clerical celibacy. It passed 81 canons whose interest lies in the severe
disciplinary penalties enforced for apostasy and adultery. It also required continence of all the
clergy under pain of deposition (can. 33).7

Collection of these laws or canons were then undertaken, but these did not bear the weight of
being an official code or they were gathered under private authority."

collections,

Council of Nicaea (Turkey, 325)

This was the first ecumenical council in the Church which approved the Nicene Creed. The
council also issued 20 canons. Disciplinary canons were already issued as early as the
Council of Nicaea. For example, c. 1 of that council has a long history of reception: It

6
Cf. J. A. CORIDEN, An Introduction to Canon Law, Paulist Press New Jersey, 2004, 12
7
Bishops, presbyters, and deacons, and all other clerics having a position in the ministry, are ordered to abstain
completely from their wives and not have children. Whoever, in fact, does this shall be expelled from the dignity
of the clerical state.

5
demands that a person must be free from physical ailments in order to be ordained a priest.
The provision can be found in a modified and current form under c. 1025 § 1 in conjunction
with 1029 CIC/1983.

Council of Chalcedon (Turkey, 451)

This was the 4th ecumenical council of the Church. Apart from the theological definition on
the divine and human natures of Christ, the council also issued a series of 27 disciplinary
canons governing Church’s administration and hierarchy.

Classical Period

IUS NOVUM (from the Decretum Gratiani to the Council of Trent)

The period of canonical history known as the Jus Novum ("new law") or middle
period covers the time from Gratian to the Council of Trent (mid-12th century–16th century).
Decretum Gratiani (Gratian’s Decretum)

Before the Concordia discordantium canonum or Decretum of Gratian there was available
the confusing wealth of written traditions described in the preceding sections of this
article. Time and again efforts had been made to reform and unify this seeming amorphous
mass of canons into a system of jurisprudence that could compare with the enviable order of
the civilian corpus. The first truly systematic collection was assembled by the Camaldolese
monk Gratian in the 11th century, commonly known as the Decretum Gratiani ("Gratian's
Decree") but originally called The Concordance of Discordant Canons[9] (Concordantia
Discordantium Canonum). The Decretum of Gratian, was published around 1148 in
Bologna. It was not a formal collection of canons but sought to provide a juridical system to
its readers. it was for a long time the textbook for studying canon law. The Decretum was
quickly adopted as the textbook of canon law, despite the fact that it was a private collection
and not codified.8 The era of classical canon law started in the 12 th century with the
Decretum Gratiani.

Decretals and Decretalists

The Bishop of Rome was referred to as Popes or “fathers” from the Italian word “papa”. The
decretals are papal decisions and letters in individual cases. They were more frequent in the
fifth century. Even though the decretals were addressed to individual bishops or to a
particular region, they had larger applications for the universal Church. They were considered
as the first manifestations of papal legislative powers in the Church. 9 The Papal decretals,
grew immensely in number and were for the first time included by a Monk named Dionysius
Exigiuus (c. 470 – c. 544, Denis the little or the Humble) on an equal footing with the council

8
Bunson, Matt (1995). Our Sunday Visitor's Encyclopedia of Catholic History. Huntington, IN: Our Sunday
Visitor.
9
Cf. J. A. CORIDEN, An Introduction to Canon Law, p. 14.

6
resolutions in a collection of laws. The Dionysiana is a collection of the conciliar and canons
and papal decretals. Gratian only grants legal force to the more recent papal decretals in the
case that they do not contradict the provisions of their predecessors and the Gospel.

Pseudo-Isidorian Decretals

Pseudo (False or forged) Decretals is a name given to certain apocryphal papal letters
contained in a collection of canon laws composed about the middle of the ninth century by an
author who uses the pseudonym of Saint Isidore of Sevilla, a Bishop and a Spanish
encyclopaedist, in the opening preface to the collection.

Decretals of Gregory IX

Raymond of Pennafort was Dominican friar in the 13th century, who compiled the Decretals
of Gregory IX, a collection of canonical laws that remained a major part of Church law until
the 1917 Code of Canon Law abrogated it.

Decretalists

The commentators of the Decretals were known as Decretalists

Extravagantes (about 1140)

The term Extravagantes (from the Latin extra, outside; vagari, to wander) was first applied to
those papal documents which Gratian had not inserted in his "Decretum", but which,
however, were binding upon the whole Church, also to other decretals of a later date. It
designates some papal decretals not contained in certain canonical collections which possess
a special authority. More precisely, they are decretals not found in Gratian's Decretum or the
three official collections of the Corpus Juris Canonici (the Decretals of Gregory IX, the Sixth
Book of the Decretals, and the Clementines).

IUS NOVISSIMUM (Recent Law)

The canonical period known as the Ius Novissimum ran from the Council of Trent (1545-
1563) to the promulgation of the Pio-Benedictine Code (1917).

Council of Trent (1545-1563)

The decrees of the Council of Trent had the controlling influence on the Canon Law of the
Church until the promulgation of the Code of canon law in 1917. he Council of Trent (19th
ecumenical, 1545 to 1563) laid the dogmatic and canonical bases for the internal reform of
the Church, anchoring the Church still more in the papacy. It gave the Church a new direction
in its development, toward being no longer the Western Church but rather the Catholic
Church. Tridentine Canon Law did not abolish the older Canon Law but rather restored,
supplemented, and renewed it, and thereby created the basis for the modern development.

IUS ACTUALE (the present law i.e. the new Codex Iuris Cnonici)

Codification of Canon Law

7
The 1917 Code Of Canon Law
Before the first Vatican Council many Bishops asked for a new and sole collection of
ecclesiastical laws . Pope Pius X ordered the collection and reformation of all ecclesiastical
laws which resulted in the drafting of the 1917 code. On March 19, 1904, Pope Pius X in
the motu proprio Arduum sane munus announced his determination to refine the laws of the
Church into a single volume. Pope Piu X initiated the huge project of codifying the vast
number of ecclesiastical, enactments and laws scattered in the Church and this Code was
promulgated by Pope Benedict XV on Pentecost day May 27, 1917 and it came into force
on the Pentecost of the following year precisely on May 19, 1918. The laborious work lasted
for 13 years under the auspices of the then secretary of State Cardinal Gasparri. The immense
pile of laws emanating from laws enacted by the various Councils like the Council of Trent ,
by the Dicatseries of the Roman Curia were collected into one corpus known as the Corpus
Iuris Canonici (CIC) using systematic arrangements.

The 1917 code contained 5 books modelled on the roman law system of persons, things and
actions

 The work took 12 years

 It was promulgated on May 27th 1917 by Benedict XV and it took effect on May 19 th
1918
 It is Known as the Pio Benedictine Code (combination of the names of 2 Popes Pius
and Benedict )

The old law was explicitly abrogated by can. 6 °1 CIC/1917.10

Lex Ecclesiae fundamentalis (LEF)

In drafting of a fundamental law. The idea of elaborating a common law for the Latin Church
and the Eastern Churches was born during the Second Vatican Council, when the scheme on
the Eastern Churches was discussed. Thus the unity of the Church would be manifested, and
the equal dignity between particular churches. The drafting of a Lex Ecclesiae fundamentalis
(LEF) was started by Paul VI on 25 November 1965 after the inauguration of the
Commission for the revision of the CIC. In his speech, the Pontiff declared: "We are faced
with a serious problem from the fact that there are two Codes, one for the Latin Church and
the other for the Eastern Church.11 the fundamental Law of the Church The law was not
published by decision of John Paul II (1981), who when he presented the new CIC declared
that the Gospel is the one and true fundamental law of the Church.

Curia Decisions
10
“Leges quaelibet, sive universales sive particulares, praescriptis huius Codicis oppositae, abrogantur nisi de
particularibus legibus aliud expresse caveatur.” The pre-codicary law, which does not contradict the applicable
law, no longer has any legal validity, but should still serve as an aid to interpretation in accordance with c. 6 °2–
4 CIC/1917.
11
Communicationes, 1, 1969, p. 41.

8
The legal decisions of the individual dicasteries of the Roman Curia also come into their own
as a phenomenon of the legislative centralization around the pope in addition to the decretals.

Vatican Council II

Ecclesia semper reformanda est!

Announcement of an ecumenical council which took place from 1962 to 1965. (Paul VI and
John Paul I). Immediately after the beginning of the Second Vatican Council the commission
for the Revision of the Code of Canon Law was established on March 28, 1963 but the work
of the commission was deferred to the conclusion of the first Vatican council. November 20,
1965 marked the closure of the Vatican II.

CIC 1983

John XXIII in 1959 announced the revision of the 1917 Code which would lead to the desired
and long awaited modernization (aggiornamento) of the Code of Canon law. Paul VI
continued the work started by his Predecessor John XXIII. The modern method of
Codification was the method used and not mere collection or compilation of existing laws.

Promulgation of the 1983 Code.

On January 25, 1983, exactly 24 years after Pope John XXIII had called for an
aggiornamento, Pope John Paul II promulgated the new Code of Canon Law for the Latin
Church to take effect Nov. 27, 1983, the First Sunday of Advent

The 1983 code is considered as the translation of the Vatican council II doctrines into legal
language and some writers consider the 1983 Code as the last book of the Vatican Council II.

Codex Canonum Ecclesiarum Orientalium (CCEO )

The Code of Canons of the Oriental / Eastern churches – for the oriental churches –
EASTERN ORTHODOX CHURCHES OR ORTHODOX CHURCHES – Consists of about
21 AUTONOMOUS CHURCHES Patriarchs or major archbishops. The Great Schism of
1054 which split the Church into Eastern and Western Christianity broke the unity of the
Church leading to different canonical traditions .

Ap Const. Sacrae Disciplinae Leges given 25th January 1983 by John Paul II establishes the
following

10 Principles which served as guidelines for the revision of the code

1. The Code is to define and protect the rights and obligations of the faithful in relation
to one another and to the Church.
2. The external and internal forums should be coordinated and not conflict with one
another.
3. Pastoral care is to be fostered above all.
4. Bishops are to have the authority to dispense from the general law of the Church.

9
 5. The principle of subsidiarity is to be more effectively applied. ( Emphasis on healthy
decentralization).
6. The rights of persons are to be defined and safeguarded. (fundamental equality of all
members – authority as service – removal of abuses).
7. Subjective rights are to be protected by suitable procedures. (Possibility of
administrative recourse).
8. Portions of the People of God are to be determined territorially for purposes of
governance. (territoriality .- criteria for determing a community of the faithful).
9. Penalties are sometimes necessary. (reduction of latae sententiae penalties and more
of imposed penalties ferandae sententiae)
10. The new Code is restructured to reflect its accommodation to a new mentality and
different needs.

INTRODUCTION TO THE CODE OF CANON LAW 1983

INTRODUCTION

1.The Catholic Church today has two Codes of Canon Law:

i. Codex iuris canonici 1983 (CIC 1983) - one governing the Latin Church
ii. Codex canonum Ecclesiarum orientalium (CCEO) - The Code of Canons of the
Eastern Churches is the title of the 1990 codification of the canon law governing
the 23 Eastern/Oriental Catholic Churches (sui iuris/autonomous or self-
governing).

The Latin Code (CIC 1983) is divided into seven Books,

They contain principles of a general nature, such as canons on juridical persons,ecclesiastical

offices, prescription, etc.

Some canons have been newly introduced, such as those on general decrees, instructions,
singular administrative acts, statutes and ordinances, distinction between public juridical
persons and private juridical persons.

Others have "been significantly revised in light of conciliar and post conciliar doctrinal and
legislative developments of recent years.

The 1983 Code consists of 7 books which are entitled:

1. Bok I - General norms (cann. 1 – 203)

2. Book II - People of God (cann. 204-746)
i. Christian faithful (cann. 204-329)
ii. The Hierarchical Constitution of the Church (cann. 330-572)
iii. Institutes of Consecrated Life and Societies of Apostolic Life (cann. 573-746)

10
 a. Norms Common to all Institutes of Consecrated Life (cann. 573-606)
b. Religious Institutes (cann. 607-709)
c. Secular Institutes (cann. 710-730)
d. Societies of Apostolic Life (cann. 731-746)
3. Book III- The teaching office of the church (cann. 747-833)
4. Book VI-The sanctifying office of the Church (cann. 834-1253)
5. Book V-Temporal goods of the Church (cann. 1254-1310)
6. Book VI-Sanctions in the Church (cann. 1311-1399)
7. Book VI-Processes (cann. 1400-1752).

BOOK ONE

GENERAL NORMS (Canons 1-95)

Limitations and Scope of Applications

Can. 1 Latin Church

Who is bound by the 1983 CIC? Canon 1 states a basic limitation in the scope of application
of the norms of the Code. It states that the canons of this Code regard only the
Latin/Western Church, not for the Eastern or Oriental Churches eg the Byzantine,
Armenian, Chaldean, Antiochen, or Alexandrian Churches.

Can. 2 Liturgical Norms

Can. 2 establishes a second limitation in the matters covered by the Code. According to the
canon the Code for the most part does not govern liturgical matters.

 E.g. Two norms were issued after Vatican 2: (1970 and 1980). Both said that acolytes
must be boys. Now abrogated Canon 230 §1 of the CIC 1983 provided that “Lay men
who possess the age and qualifications established by decree of the conference of
bishops can be admitted on a stable basis through the prescribed liturgical rite to
the ministries of lector and acolyte.”

 Newly modified Canon 230 § 1 states that, “Laity who possess the age and
qualifications established by decree of the conference of bishops can be admitted on a
stable basis through the prescribed liturgical rite to the ministries of lector and
acolyte.”

Canon 3 Agreements / Concordants

 Canon 3 presents another limitation when it affirmed that agreements and concordants
entered into by the Holy See were not to be affected by the Code. The Code recognizes

11
 'treaties' concordats, etc. E.g. Concordat is a treaty with Holy See. Pacta sunt servanda,
Latin for "agreements must be kept", is a brocard and a fundamental principle of law.

Can. 4 Acquired rights and privileges

Can. 4 states that acquired rights and privileges, which are not contrary to the canons of the
Code remain in force.
 E.g. 30 was former age to become Bishop - 1983 made it 35. Anyone already
consecrated Bishop before the 1983 Code without reaching the age of 35 remains a
Bishop, the right acquired can't be taken away. Francis Cardinal Arinze for example
became the youngest Roman Catholic Bishop in the world when he was consecrated on
29 August 1965, at the age of 32.

 The Code doesn’t revoke rights and privileges unless it expressly so states e.g.
requirement of JCL or JCD for some tribunal offices doesn’t affect those already working
before the law was made.

 Natural rights cannot be abrogated. Legal rights (acquired rights) can be changed.

Can. 5 Universal and particular customs

Can. 5 states that some customs which are not contrary to the provisions of the Code or
immemorial may remain in effect. Contrary Customs. The canon regulates customs as source
of law. Custom: practice introduced by the community. expressly abrogated. Centenary: >100
yr. Immemorial predate memory of the oldest persons in the community.

Can. 6 Abrogation

Can. 6 states that some particular norms regarding canonization of saints are not regulated in
the Code.
 Cann. 6 and 20. The integral (ex integro), or complete, reordering of law is one of three
means of revocation of law put forth in the Code of Canon Law of 1983 (= CIC/83).
Revocation of a law means it no longer has binding force. Can. 6 speaks of integral
reordering in regard to laws in effect at the time the Code came into force; can. 20 applies
this concept as a general principle to all law. If a given law is not abrogated or derogated
expressly by the legislator or if that law is not directly contrary to a newly promulgated
law, then it continues to exist, unless its subject matter has been integrally reordered by
the later law. 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 +).

12
  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.

Title I: Eccesiastical Laws

(Cann. 7 - 22) 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

Canon Law embraces three bodies of law: 1) Divine law: irreformable truths of faith, dogma
and morals. D. positive L. – scripture and tradition. D. natural L. – based on the order of
creation and human nature, discoverable by reason. 2) ecclesiastical (Catholics only), and 3)
civil law. This Title concerns the second group. Human in origin, they can be modified.
Many principles in this Title apply to other types of ius. C. 17 provides basis for extending to
other general norms. I.e. these norms provide rules for interpretation of lex, which is parallel
to ius. Leg and Exec norms similar, except that Exec can’t be contrary to, same or greater
than Leg.
c.7 Earlier draft: a general norm for the common good of some community given by a
competent authority – to a community capable of receiving law. Legislators: pope, bishops,
councils, and conferences. Curia has executive and judicial power only. Only pope and
bishops can delegate legislative power. (Chapters?)
1. letter is Apostolic Constitution. Motu proprio “on his own initiative” i.e. signed it. 2. letter.
Authentic interpretations can be given the force of law. All laws have the same juridical
weight. But lawgiver gives the authority of law: universal lawgiver (pope, ecumenical
council) makes universal law.
Law is general and applies to all the community, precept applies only to a few. Canon law
binds in conscience (unless excused) and in the external forum. Penalties are only prescribed
if required by common good, otherwise, it is voluntary compliance.
Law must be reasonable to achieve a useful purpose and serve the common good. Non-
reception of law is the ignoring of law by a majority. Otherwise some might accept and
others not, or accept for a time then reject (intrinsic cessation of law). Dispensation,
exemption or epieikeia. Lawmakers and subjects should be active in advancing the law.

Canon 8 Promulgation

 Most times 3 months to applicability.

 Pope decides how to promulgate Universal Law.
 AAS - has all legislative texts. But not all in AAS is normative.
 It is necessary to say clearly it is a law or authentic interpretation. Promulgation can be
oral, and need only be promulgated to those affected.
 Woestman - St. Paul's Canada - said locution contained authentic interpretation. But is
wasn't stated and it was not stylistically legal.

13
 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 it’s for the good of the
people.

 E.g. of retroactive law is penal law most favorable is applied: whether current law, or law
at time of criminal act. Also, sanation sanatio in radice makes an act valid from its
inception.
 E.g. Canon 1313 someone married in the 50s - all contract and institution. Husband
marries only for contract and procreation. Procreation, unity, indissolubility. Legal under
1917 code. VCII - love covenant “partnership of their whole life, and which of its own
very nature is ordered to the wellbeing of the spouses” is now part of the relationship.
Pouring new content isn't changing law, but it changes circumstances.
 Registered partnership - close to marriage, but not marriage (can't adopt) - not in the code.
It was intended for homosexuals, but was extended. Msgr. Hersmans, Canons 1394, 1395
- marriage, concubinage forbidden. Formed registered Partnership because if done before
65th, 'wife' could get his pension.
Canon 10 Invalidating Laws

 leges irritantes establish requirements of the act or person for validity. There are many
expressions used for this: capax esse; dirimere; habere effectum, obtinere effectum or
sortiri effectum; incapax; inhabilis; invalidus; irritus; nullus; valide; validitas; falidus; vi
carere; vim habere; vim non habere; and vitiare. Validity requirements may be implied
from text, context, intent, parallel places, tradition, legislative history, etc. Unless it’s
clear, it is not invalidating.
 Often it is illicit if you omit an action required. But the validity may still be in tact.
 Illicit and/or Invalid - E.g. Priest with difficulties - Rent a Priest - Bethune - married -
attempted marriage - suspended. But he was just suspended and bishop didn't ask for

14
 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

15
 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, governance)
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. In 2009, some exceptions to marriage formalities for those who left by formal act
were removed. On 12/15/09, BXVI Omnium in mentem, dated October 26, 2009, was
published. One of the two issues in the Motu Proprio concerns “the elimination of the
clause actus formalis defectionis ab Ecclesia Catholica contained in canons 1086
para. 1, 1117 and 1124.
5. 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.
a. Pio Ciprotti - everyone is a person in the church because of the unlimited message
of salvation. True, this is the goal, but it is still a potentiality.
b. 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.'
c. 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.
d. Pio Ciprotti - The code sometimes clearly uses persona when the non-baptized are
involved 1086 'marriage between two persons, one not baptized…' Therefore

16
 everyone is a person. But code isn't consistent in its language, the use in canon 96
and 1086 are different.
e. Read canon 96 closely: it says because you are a person, you have duties and
rights. But non-catholics have some rights in the church. E.g. annulment, 861.
Rights are given to non-baptized, therefore they are persons. This reverses the
argument.
 What do we do with persons who do not have any rights in the church, or who have
very few rights. E.g. canon 1331. Even the worst excommunicates have a right to seek
reconciliation. A very christian idea. So you become a persona incompleta in the
church - when you loose certain rights and duties, you are limited. You can become
complete again. Urrutia - Personalitas numquam 'totaliter' amittitur a
baptizato. Otherwise what is the effect of baptism.
 Christifidelis are part of the church subsists in the catholic Church - which is broader.
Canon 204 - but by canon 208 and 223, it will be limited essentially to only the
Catholics. 1086, 117, 1124, 96, 204
Canon 12 Territorial Binding of Universal Law §1, §3 particular law bind those for whom
they were enacted, or those with domicile or quasi-domicile.

 Universal / Particular laws E.g. feast days bind where you are. Not observed because of
1) Desuetude is a contrary custom; 2) contrary particular law; 3) apostolic privilege or
indult; 4) dispensation in a particular case. Particular law may be territorial or personal
(e.g. religious). Presumption is that laws are territorial unless clearly personal. Generally
territorial laws bind only domiciled (permanent intent, or 5 years) or quasi-domiciled (3
mos. intent, or >3mos) and living there. c102
 Feast days in 1246.1 but paragraph 2 provides that episcopal conferences could move
them. E.g. All Saints, Christmas, Assumption, Ascension.
Canon 13 Travelers

 §1 Generally particular laws bind in territory not personally.

 travelers are outside their domicile or quasi-domicile. Transients have no domicile or
quasi-domicile. Exceptions are given strict interpretation.
 §2 Travelers are free of all territorial laws. Their home law are relaxed, unless their home
would be harmed. The local law is relaxed unless harm results locally:
 Public order – liturgy, events, meetings (but not Churches). Formalities of acts –
procedures contracts, bequests, etc; immovable goods.
 §3 Transients – vagi persons without domicile or quasi-domicile bound by universal law,
and particular law wherever they are.
 In 1917 code, the term for universal law was ius commune.
 Lex rei sitae for immovable goods, only the law of the place apply.
 Lex fori are the formalities of the place. Two belgians marry they are covered by belgian
law for marriage, but the formalities are of the place of the marriage.
Canon 14 Doubt of Law

17
 §1. Law doesn't bind if there is a doubt of law.
 Doubt is a state of mind of withholding assent between two contradictory propositions.
Positive doubt is based on a conflict in objective evidence. Negative doubt is a subjective
lack of evidence. Dubium iuris occurs when moral certainty is not attainable. Doubt may
pertain to meaning, extent, legitimate enactment or promulgation, revocation. §2 Dubium
facti doubt of fact: question of actual age, valid sacraments, membership in Catholic
Church. Ordinary (c134) can dispense.
 Doubt must be objective and positive, effort must be taken to resolve. Ordinary can
dispense doubts if higher authority generally dispenses the impediment (e.g. age) but if
the higher authority, to whom dispensation is generally reserved doesn’t dispense, neither
can the ordinary. Divine and constitutive laws may never be dispensed.
 E.g. Canon 749 - It is not infallible unless manifestly demonstrated as such. E.g. on
women's priesthood - there was argumentation whether it was infallible or not. So there
was doubt showing that it wasn't manifestly demonstrated.
 E.g. Canon 277 - Celibacy of clerics - Some exceptions for deacons in 288, but no
exception for canon 277. Even continence which is contrary to marriage.
 E.g. Canon 1041 Typical case is irregularities regarding ordination: prohibits ordination
to those who attempt marriage while under marriage bond or orders. What about
homosexual marriage. But also for 'abortum procuraverit' - what if someone councils
abortion - you could dispense from the possible irregularity.
Canon 15 Ignorance and Error

 §1Ignorance and Error – ignorance of the law is no excuse.

 §2 The law presumes knowledge of law, penalty, personal facts, and notorious facts.
Presumed ignorance of non-notorious facts.
 Nemo censetur ignorare legum - a legal fiction.
Canon 16 Authentic Interpretation of Law

 Official Interpretation of Law – PCILT – pontifical council for the interpretation of

legislative texts. Since interpretation is a legislative function it can’t be delegated except
by Supreme Pontiff who can allow lower legislators to delegate.
 Four types of interpretation:
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 don’t bind. They allow
continued jurisprudential development.

18
 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

19
 Strict interpretation limits law’s 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 doesn’t change the meaning. Broad interpretation is given in a favorable law. E.g.
Postulants are members for extensive interpretation, novices are members for broad
interpretation, juniors are members for strict interpretation, perpetuals are members for
restrictive interpretation. Extensive interpretation of abortion required legislator.
Exceptions are strict? To limit exceptions, or to limit application? Look to favorable
interpretation. Where exception gives favor to one at the expense of another, give a strict
interpretation.
Canon 19 Lacuna Legis

 If there is NO law, then the legislator may have intended to have no law - to leave things
open. This canon only applies if there is a real lacuna.
 Solutions only apply to liceity, validity must be provided in positive law. E.g.
constitutions. C1752 - In causis translationis applicentur praescripta c 1747, servata
aequitate canonica et prae oculis habita salute animarum, quae in Ecclesia suprema
semper lex esse debet.
 There is no hierarchy in the sources listed. The sources are equal in weight.
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. Epikeia - gk.
4. Practice of the curia isn’t documented well, but can be obtained from CLSA. It
provides guidance, but isn’t binding. These can’t be used to establish penalties. The
curia doesn't have binding value is as in US; if you appeal, it would bind, but you may
never appealed. Both parties may be interested in keeping to the local forum.
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.

20
Canon 20 Revocation of Law

 Later law abrogates or derogates earlier law. But a particular law remains (the exception)
even if the norm itself changes.
 Divine laws are immutable, but ecclesiastical laws are human and can be changed,
derogated, or abolished, abrogated or add net material, subrogation. Higher authority can
revoke own, or lower law. Special law seems to refer to precepts for a juridic person, e.g.
proper law.
 Canon 135.2 particular law can't derogate from universal law. E.g. if particular is
contradicted by new universal law, that particular law stands, unless specifically
derogated.
Canon 21 Doubtful Revocation No revocation in the case of doubt - rather they should be
harmonized. Never presume the clash, try to find a way to make the apparent conflict
disappear.

Canon 22 Canonization of Civil Law The civil law is incorporated into the code – includes
guardianship, civil effects of marriage, adverse possession, contracts, possessory actions,
settlements, compromise, arbitration. It really has no choice to obey civil law. A societas
perfectas could choose it's legal compliance. A complete, autonomous society is intended
(Tarquini). Now even European states are no longer autonomous. This was developed on loss
of papal states, but was not taken up (nor abrogated) in Vatican 2. There are more realistic
references to civil in other sections: selling of goods in canon 1296 - if canon law isn't
followed, bishop should do whatever…but in fact, it's all over.

Title II: Custom (Cann. 23 - 28)

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 doesn’t have the force of law, any superior
or custom can remove; 3) legal – put in by force of law. Custom may be praeter
ius beyond the law – an area not covered, or contra legis contrary to the law. Third
traditional category of a custom in accord with law secundum legem is not helpful.
 Custom isn’t law, but has the force of law. Vox populi – the community speaks, not
leaders. Competent legislator is the supreme legislator of the territory. For contrary
custom, the legislator whose law is derogated (or higher legislator) is competent.
Approval may be tacit. Approval may be specific specialiter. Else it may be legal or

21
 general – custom is observed for 30 years, whether or not legislator is aware canon 24-26.
A custom may be centenary >100 yr. or immemorial – as long as anyone can remember.
 When the legislator approves a custom, he is not legislating. E.g. he can approve a custom
contra legem, but he can't enact a law contra legem.
Canon 24 Reasonableness

 Reprobation must be express: reprobata contraria consuetudine.

 Canon 396§2: The Bishop has a right to select any clerics he wishes as his
companions and helpers in a visitation, any contrary privilege or custom being
reprobated.
 Canon 423§1 Only one diocesan Administrator is to be appointed, contrary customs
being reprobated; otherwise the election is invalid.
 Canon 526§2: In any one parish there is to be only one parish priest, or one moderator
in accordance with Canon 517§1; any contrary custom is reprobated and any contrary
privilege revoked.
 Canon 1076: A custom which introduces a new impediment, or is contrary to existing
impediments (to marriage), is to be reprobated.
 Canon 1287 §1: Where ecclesiastical goods of any kind are not lawfully withdrawn
from the power of governance of the diocesan Bishop, their administrators, both
clerical and lay, are bound to submit each year to the local Ordinary an account of
their administration, which he is to pass on to his finance committee for examination.
Any contrary custom is reprobated.
 Canon 1425 §1: The following matters are reserved to a collegiate tribunal of three
judges, any contrary custom being reprobated: 1° contentious cases: a) concerning the
bond of sacred ordination; b) concerning the bond of marriage, without prejudice to
the prescripts of canons 1686 and 1688; 2° penal cases: a) for offenses which can
carry the penalty of dismissal from the clerical state; b) concerning the imposition or
declaration of an excommunication.) Custom contrary to divine law intrinsically
unreasonable; expressly reprobated can never have force of law. Reprobation can
change. Unreasonable ishalso: disrupt the ‘nerve of church discipline.’ E.g. lay judges
on tribunals ousted by 1917 code. Contrary to immunity and liberty of the church….
As if…. Leaders decide reasonableness.
 Many of the customs are in the area of liturgy that is more visible, and where lay
people have more freedom.
 But also parish priests have to ask if they can leave the parish for more than a week -
but it is rarely asked. So there is a custom contra legis. If it is forbidden, then the
growth of the custom stops, then it restarts the running of the 30 years of the custom
starts again.
Canon 25 Community

 Community is necessary: so for example. community of Religious Institute, a smaller

group can be a easier to have a custom. Community capable / intention. Community for
whom law can be made Public Juridic Person, private association. approved and with

22
 reg., homogeneous group, e.g. permanent deacons, parish group. Not capable are families,
non-approved private associations. Must be distinct and juridically tied to the church.
 Animus of introducing custom may be implicit in act / will. If they don’t object to
derogation, there isn’t the will to creat a law. Must be the practice of the majority. CCEO
doesn’t mention intent but requires continuous, peaceful practice for 30 yr.
 Mos is the habit, but without the intention of making a law. Consuetudo is a practice that
is introduced with the intention of introducing a law.
Canon 26 Reasonable Time

 Even centenary custom can’t overturn reprobation. But no forbidding clause in 1983
code. If ius forbids, only 30 years. required to overturn. Unless it is specially approved
earlier. Specialiter probatur. But what if the bishop approves after a month, can he
effectively circumvent canon 135 which prohibits an inferior legislator from legislating
against a higher legislator. However, approving a custom isn't issuing a law. So the
legislator has more power in the framework of a custom than in the framework of a law.
Canon 392 which requires him to foster unity, common discipline and following
of all ecclesiastical law. But that would include following of customary law. Unity
doesn't mean just uniformity. Customs may foster unity through different practices. This
leaves him a margin of appreciation.
 Custom also leaves more latitude than a dispensation - you can't leave aside divine law.
Canon 85, 86 says that limits for dispensation are more restrictive than for custom. This is
true even though the effects of a dispensation are much more limited - with custom, you
are replacing the law. This can be explained by the fact that the scope of the custom
remains vulnerable to being stopped by a law revoking contrary custom.
 There is a lot of latitude given to the people of God. Prescription is another area that is
similar.
 30 years are interrupted by desuetude or express disapprobation or contrary law is re-
issued.
Canon 27 Interpretation

 Custom is the best interpreter of the law. This is a principle of roman law. Some believe
applies to all customs in a different way. Legal customs don’t interpret because they are
law. Customs beyond are particularly useful. Optional practices and contrary practices are
less useful.
Canon 28 Revocation

 canon 5 revokes all customs contrary to the code. Canon 28 provides for revocation of
legal customs, factual customs can be removed executively. Law may expressly revoke a
contrary law by specifically naming the custom, or generally by stating ‘anything to the
contrary notwithstanding.’ (Universal revokes universal – particular revokes universal
and particular.) Contrary-ness is tacit revocation (unless centenary or particular). Most
say particular can’t revoke a more general custom.

23
 Proof of custom: 1) community capable; 2) practice of majority; 3) intent; 4) >30 yr.; 5)
reasonable.

Canon 29 General Decrees The word decree is ambiguous – could be legislative acts (laws)
or executive / administrative acts applying the law. A general decree is a legislative text, it
must be promulgated by a person or group with legislative power, for a community capable
of receiving law. Even the law isn’t specific 455§1 includes executive acts in decrees
via Authentic Interpretation. E.g. Bishop can make law for a diocese, but pastor of parish
doesn’t have legislative authority. As laws, decrees are subject to title I above, not this title
III

Canon 30 Limits of Executive Power One with executive power can't issue laws, they only
implement them. An executive can however legislate if that power is specifically delegated
by a competent legislator (canon 135.1), the only one who can do this is the Roman Pontiff or
an ecumenical council.

Canon 31 General Executory Decrees Purpose / Issuance of General Executory Decrees –

administrative is executive. Distinguish the term acts of administration which are generally
use of temporal goods: e.g. canons 638 and 1277. Executive is day to day activity of applying
laws which may at times be quasi-legislative or quasi-judicial. This canon regulates the quasi-
legislative function. Roman congregations issue general executory decrees, not laws. Thus
they depend on the laws, and are interpreted according to c31-33. Though they are not laws,
they are promulgated like laws and have a grace period before application, like laws.

Canon 32 General Executory Decree Coverage of general executory decree is the same as
that of the underlying law law. However, this is true only if executor had same jurisdiction as
legislator. Otherwise it binds only those bound by the law AND under the jurisdiction of the
executive.

Canon 33 Relation to laws §1 Decrees cannot derogate from law. §2 Decrees may be
revoked, they fail when the underlying law ceases. However, they don't fail with expiry of the
promulgator's term, unless specifically so stated.

Canon 34 Instructions

 §1 Instructions are not laws, and laws cannot be enacted under the title of instruction. A
Decree specifies or encourages observance to those bound. An instruction gives practical
application to executives. An Instruction is a guideline, handbook, manual. Those with
executive power can issue instructions within the limits of their competence. §2
Instructions can't derogate from the law. §3 Decrees may be revoked, they fail when the
underlying law ceases. Like POMS in the US.

24
 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)

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

25
single application in the instant case. You can broaden the a law to cover a lacuna, but an act
is restricted to the case for which it was issued.

Canon 37 Written Form Written Form required for legitimacy, not for validity because
that's not expressly stated. Only required for external forum. Act must be communicated. E-
mail / fax are considered not quite adequate. Hard copy must at least follow. Commissorial
form – commission someone to go to the person and execute the act. This is especially
helpful when the executive is distant from the person involved. It requires the commissioned
party to verify the facts are as stated.

Canon 38 Limits Limits – actor must derogate, and must have power to do so if it’s opposed
to rights, law or custom.

Canon 39 Validity Conditions affecting validity. What about vernacular. CCEO provides
same latin and: similar words in the vernacular. Law favors validity.

Canon 40 Invalid Anticipation Canon 40ff provisions for execution. If otherwise, it should
be clearly stated. If you don’t get a dispensation, etc, but the time comes to act, you can call
to verify that it was issued.

Canon 41 Limits on acts of executor. Strikes the balance between consistency and
subsidiary. Other grave cause may be absence of a derogating clause required by c.38. Don’t
apply if null, void, or conditions not fulfilled.

Canon 42 Invalid Execution Fulfillment of norm of mandate and instructions and conditions
goes to validity. The conditions for validity should be clearly stated as in c. 39.

Canon 43 Substitution Substitution is allowed unless otherwise provided.

Canon 44 Succession Assumption is that executor is chosen as officeholder, not personally.

Canon 45 Remedy for Error Remedy for error – Executor is charged to get the job done.

Canon 46 Continuity Continuity – Admin. Act is a public act, so doesn’t fail when
executive fails.

Canon 47 Revocation

 Revoked on actual notice.

 There are three types of administrative acts: singular decree communicates decisions; the
singular precept impose injunctions; the rescript grant dispensation or privileges. SD and
SP in this Ch..
Ch. II : Singular Decrees and Prescripts

26
(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 it’s in writing. Appeal of reasons is to administrator’s superior. Appeal to
Apost. Signatura is only viable on grounds of substantive or procedural illegality. CCEO
allows reasons to be recorded secretly.

Canon 52 Limited application. Cannot be extended beyond person and event for which it was
issued.

Canon 53 Conflicting decrees. Same authority is presumed since higher authority would
trump lower.

Canon 54 Effective when communicated in an official writing.

Ch. III: Rescripts

(Cann. 59 - 75) 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

27
 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). bishop’s power of dispensation is

intrinsic to his power of governance. Can’t dispense constitutive, procedural or penal law.
Reserved powers: 20 situations, but authentic interpretation is expanding the list. Any
ordinary, not just bishop, can grant (1) if recourse is difficult [not impossible but more than
inconvenient] (2) if there is harm in delay and (3) Holy See usually grants. Confidentiality is
paramount, so use of fax, e-mail is considered to public. Holy see regularly dispenses age,
retroactive validation, law of alienation; doesn’t easily dispense celibacy, solemn profession,
apostasy and almost never episcopal ordination, irregularity of abortion or consanguinity in a
direct line. Authentic Interpretation

Canon 88 Competence. Broader than above. But singular person or community. Episcopal
conferences don’t give laws, but general executory decrees. Liturgical law, can dispense
discipline, but not constitutive. However, can’t give carte blanche.

Canon 89 Especially in missionary situations. bishop should make it clear at the beginning of
any new assignment.

28
Canon 90 Motivating Cause – substantially the same as 1917. Spiritual good is a legitimate
cause. There should be a proportionality between the cause and the law. Should be free from
dolus deceit.

Canon 91 Applies c. 136 on executive power to dispensation. Broader than 1917.

Competence is personal and territorial.

Canon 92 Dispensation is an exception – so that it’s strictly interpreted.

Canon 93 Permission – faculty of doing or omitting something not unlawful. A faculty is the
extension of power from a superior with jurisdiction. Indult is a favor for a time, privilege is
in perpetuity. Positive objective juridic norm. Absolution, sacramental or juridic releases
from penalties or censure. *New from 1917.

Title V: Statutes and Ordinances

(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 church’s
mission; Constitution indicates strategies to realize purpose; governance indicates leadership;
procedure is internal and external operations. Legitimate members implies statutes will
include issues of admission and separation. Promulgated by legitimate power and approved
(canon 117).

Canon 95 Rules of order Those who wish to participate must freely assent to the rules of
participation.

Title VI: Physical and Juridic Persons

Ch. I: Physical Persons

(Cann. 96 - 123) 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:

29
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 newcomer
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

30
 §1 Domiciled with parent or guardian, over 7 years of age can have a quasi-domicile, and
a domicile if emancipated in civil law.
 §2 Other conservatee is domiciled with guardian
Canon 106 Loss of Domicile Domicile lost with 1. departure; and 2. intent not to return.
Most say multi-domiciles not possible. Loss of acquired rt. Requires strict interpretation.

Canon 107 Juridic effect of domicile Through domicile and quasi-domicile, one acquires a
pastor and ordinary. Transients have pastor and ordinary of residence. Also access to courts.

Canon 108 Degrees of Consanguinity Acts of generation. 4th degree is normative in most
cases. 2nd degree prevents marriage by divine law, not dispensable. Also direct line
consanguinity can’t be dispensed.

Canon 109 Affinity Spouses stand in each others stead to count affinity. Only affinity in
direct line is a matrimonial impediment c. 1092. Previous code had another method of
calculation.

Canon 110 Adoption Adoptive parents acquire canonical parental rights on civil
adoption. Canon 111 Rite

 §1 Children in rite of parents - or where they agree, or of the father.

 §2 Baptized over 14 years, can choose own rite.
Canon 112 Change of Rite

 §1 Change rites 1. with permission of the apostolic see; 2. spouse transferring to rite of
spouse - can freely revert at the end of the marriage. 3. Children of the above can return to
the Latin Church after their 14th year.
 §2 Prolonged receipt of sacraments in another ritual doesn't constitute enrollment.
Ch. II : Juridical Persons

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 of Juridical persons (artificial persons)

31
 §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?

32
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.

33
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 isn’t consent. Superior
can’t vote in consent. Seeking counsel needn’t be in person, should be analogous to the
group convoked. Relaxation of convocation requirement only if in particular or proper
law. Can act against counsel but should have an overriding reason - in their own mind.
 §2 When consent or counsel of persons as individuals is required, consent of all is
required, and or the opinion of all is needed for counsel.
 The superior places the act, but requires consent for validity. In a collegial act, superior
votes with the others, and the group places that act. If consent of individuals is required,
each has veto power.
 §3 Those giving consent or counsel should do so diligently, secrecy may be imposed.

34
 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 constitution. (Clerics qualified, doesn't say that
lay are not.) §2 Laity cooperate (not participate) in the same power. Roman school - laity
have always exercised jurisdiction and can still do so. Munich school - priesthood is one, and
therefore laity are excluded from jurisdiction. There still exist examples of lay offices with
the power of governance: finance officer, finance council, lay parish administrator, judge,
promoter or defender.

Canon 130 Internal and External Forum Governance concerns the external forum, but is
sometimes exercised for the internal forum. Law prefers to act in the external verifiable
forum. Internal forum is sacramental and non-sacramental.

Canon 131 Ordinary and Delegated Power §1 Ordinary power pertains to the office,
delegated power is given to a person. §2 Ordinary power can be proper or vicarious (e.g.
vicar general VG exercises power in the name of the bishop). §3 burden of proving
delegation rests on the delegate.

Canon 132 Habitual Faculties Delegated power that subsequently runs with the office.
Generally VG and EV have habitual faculties granted by the Holy See to a bishop.

35
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.

36
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

37
 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

38
 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”

39
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

40
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

41
 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.

42
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).

43
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.

44
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.

SALVATION OF SOULS AS THE SUPREME LAW CAN. 1752

45