Canon law of the Catholic Church
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Catholic canon law
The jurisprudence of canon law is the complex of legal principles and traditions within which canon law operates, while the philosophy, theology, and fundamental theory of canon law are the areas of philosophical, theological, and legal scholarship dedicated to providing a theoretical basis for canon law as legal system and as true law.
- 1 Definitions
- 2 Sources of canon law
- 3 Legal history and codification
- 4 Jurisprudence of canon law
- 5 Philosophy, theology, and fundamental theory of canon law
- 6 Canonistics, faculties, and institutes
- 7 Related terms
- 8 Footnotes
- 9 External links
The term "canon law" (jus canonicum) was only regularly used from the twelfth century onwards. The term jus ecclesiasticum, by contrast, referred to the secular law, whether imperial, royal, or feudal, that dealt with relations between the state and the Catholic Church. The term corpus juris canonici was used to denote canon law as legal system beginning in the thirteenth century.
Other terms sometimes used synonymously with jus canonicum include jus sacrum, jus ecclesiasticum, jus divinum, and jus pontificium.
Ecclesiastical positive law is the positive law that emanates from the legislative power of the Catholic Church in order to govern its members in accordance with the Gospel of Jesus Christ. Fernando della Rocca used the term "ecclesiastical-positive law" in contradistinction to civil-positive law, in order to differentiate between the human legislators of church and state, all of which issue "positive law" in the normal sense.
Etymology of "canon"
The word "canon" comes from the Greek kanon, which in its original usage denoted a straight rod, was later used for a measuring stick, and eventually came to mean a rule or norm. In 325, when the first ecumentical council, Nicaea I, was held, kanon started to obtain the restricted juridical denotation of a law promulgated by a synod or ecumenical council, as well as that of an individual bishop.
Sources of canon law
The term source or fountain of Canon Law (fons juris canonici) may be taken in a twofold sense : a) as the formal cause of the existence of a law, and in this sense we speak of the fontes essendi of canon law or lawgivers; b) as the material channel through which laws are handed down and made known, and in this sense the sources are styled fontes cognoscendi, or depositaries, like sources of history.
The fontes essendi include the following legislators:
- Jesus Christ, whom the Catholic Church claims as its founder, is the original source of divine laws laid down chiefly in the Constitution of the Church, and next to Him the Apostles as lawgivers either of divine or human laws, viz.: as inspired or merely human instruments.
- The Roman Pontiff, either alone or in unison with a general council, as endowed with the supreme and ordinary power of enacting laws for the universal church.
- The Bishops for their respective districts, inasmuch as they are empowered to enact laws subordinate to common law;
Customs, too, must be considered as a source of law, universal as well as particular.
Whether the natural law can be called a source of Canon Law depends on the formal declaration of the supreme authority and through determinationes ; for the natural law as such — its extent is very uncertain — cannot be called a homogeneous source of Canon Law except it has been declared such by the highest authority.[note 1] Besides its range being very uncertain, the so-called natural law is often nothing but a subjective sentiment, or, at most, a dictate of reason.
These sources, as we have said, are depositaries in which we find collected the laws enacted in the course of centuries. They may also be considered as the channels through which the river and rivulets of legal enactment flow and are preserved. They do not constitute the law as such, but rather point out where it may be found. Among these sources are Holy Scripture and the decrees of popes and councils ; also, in a measure, custom, inasmuch, namely, as it proves the existence and continuity of laws unwritten and perhaps forgotten.
Legal history and codification
The Catholic Church has the oldest continuously functioning legal system in the West, much later than Roman law but predating the evolution of modern European civil law traditions. What began with rules ("canons") adopted by the Apostles at the Council of Jerusalem in the first century has developed into a highly complex legal system encapsulating not just norms of the New Testament, but some elements of the Hebrew (Old Testament), Roman, Visigothic, Saxon, and Celtic legal traditions. As many as 36 collections of canon law are known to have been brought into existence before 1150.
The history of Latin canon law can be divided into four periods: the jus antiquum, the jus novum, the jus novissimum and the Codex Iuris Canonici. In relation to the Code, history can be divided into the jus vetus (all law before the Code) and the jus novum (the law of the Code, or jus codicis).
The Oriental canon law of the Eastern Catholic Churches, which had developed some different disciplines and practices, underwent its own process of codification, resulting in the Codex Canonum Ecclesiarum Orientalium promulgated in 1990 by Pope John Paul II.
St. Raymond of Penyafort (1175–1275), a Spanish Dominican priest, is the patron saint of canonists, due to his important contributions to canon law in codifying the Decretales Gregorii IX. Other saintly patrons include St. Ivo of Chartres and the Jesuit St. Robert Bellarmine.
The period of canonical history known as the Jus Antiquum ("ancient law") extends from the foundation of the Church to the time of Gratian (mid-12th century). This period can be further divided into three periods: the time of the apostles to the death of Pope Gelasius I (A.D. 496), the end of the 5th century to the spurious collection of the 9th century, and the last up to the time of Gratian (mid-12th century).
In the Early Church, the first canons were decreed by bishops united in "Ecumenical" councils (the Emperor summoning all of the known world's bishops to attend with at least the acknowledgement of the Bishop of Rome) or "local" councils (bishops of a region or territory). Over time, these canons were supplemented with decretals of the Bishops of Rome, which were responses to doubts or problems according to the maxim, "Roma locuta est, causa finita est" ("Rome has spoken, the case is closed"). A common misconception, the Catholic Encyclopedia links this saying to St Augustine who actually said something quite different: "jam enim de hac causa duo concilia missa sunt ad sedem apostolicam; inde etiam rescripta venerunt; causa finita est" (which roughly translate to: "there are two councils, for now this matter as brought to the Apostolic See, whence also letters are come to pass, the case was finished") in response to the heretical Pelagianism of the time.
The spurious conciliar canons and papal decrees were gathered together into collections, both unofficial and official. In the year 1000, there was no book that had attempted to summarized the whole body of canon law, to systematize it in whole or in part. 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 (Concordantia Discordantium Canonum). Before Gratian there was no "jurisprudence of canon law" (system of legal interpretation and principles). Gratian is the founder of canonical jurisprudence, which merits him the title "Father of Canon Law". Gratian also had an enormous influence on the history of natural law in his transmission of the ancient doctrines of natural law to Scholasticism.
Canon law greatly increased from 1140 to 1234. After that it slowed down, except for the laws of local councils (an area of canon law in need of scholarship), and secular laws supplemented. In 1234 Pope Gregory IX promulgated the first official collection of canons, called the Decretalia Gregorii Noni or Liber Extra. This was followed by the Liber Sextus (1298) of Boniface VIII, the Clementines (1317) of Clement V, the Extravagantes Joannis XXII and the Extravagantes Communes, all of which followed the same structure as the Liber Extra. All these collections, with the Decretum Gratiani, are together referred to as the Corpus Juris Canonici. After the completion of the Corpus Juris Canonici, subsequent papal legislation was published in periodic volumes called Bullaria.
In the thirteenth century, the Roman Church began to collect and organize its canon law, which after a millennium of development had become a complex and difficult system of interpretation and cross-referencing. The official collections were the Liber Extra (1234) of Pope Gregory IX, the Liber Sextus (1298) of Boniface VIII and the Clementines (1317), prepared for Clement V but published by John XXII. These were addressed to the universities by papal letters at the beginning of each collection, and these texts became textbooks for aspiring canon lawyers. In 1582 a compilation was made of the Decretum, Extra, the Sext, the Clementines and the Extravagantes (that is, the decretals of the popes from Pope John XXII to Pope Sixtus IV).
The third canonical period, known as the Jus Novissimum ("newest law"), stretches from the Council of Trent to the promulgation of the 1917 Code of Canon Law which took legal effect in 1918. The start of the Jus Novissimum is not universally agreed upon, however. Dr. Edward N. Peters argues that the Jus Novissimum actually started with the Liber Extra of Gregory IX in 1234.
Benedict XV, in his bull of promulgation, refers to the motu proprio Arduum sane, which was issued by Pius X, March 17, 1904, and gave rise to the 1917 Code. In that memorable pronouncement the late Pontiff stated the reasons which prompted him as the supreme Pastor of souls, who has the care of all the churches, to provide for a new codification of ecclesiastic laws, with a view " to put together with order and clearness all the laws of the Church thus far issued, removing all those that would be recognized as abrogated or obsolete, adapting others to the necessities of the times, and enacting new ones in conformity with the present needs."
It is sometimes referred to as the Jus Codicis ("law of the code") or, in comparison with all law before it, the Jus Novum ("new law"). From time to time, the Pontifical Council for Legislative Texts issues authentic interpretations regarding the code. The pope occasionally amends the text of the codes.
By the 19th century, the body of canonical legislation included some 10,000 norms. Many of these were difficult to reconcile with one another due to changes in circumstances and practice. The situation impelled Pope St. Pius X to order the creation of the first Code of Canon Law, a single volume of clearly stated laws. Under the aegis of the Cardinal Pietro Gasparri, the Commission for the Codification of Canon Law was completed under Benedict XV, who promulgated the Code on 27 May 1917, effective on 29 May 1918. The work having been begun by Pius X, it was sometimes called the "Pio-Benedictine Code" but more often the 1917 Code to distinguish it from the later 1983 Code which replaced it. In its preparation, centuries of material was examined, scrutinized for authenticity by leading experts, and harmonized as much as possible with opposing canons and even other codes, from the Code of Justinian to the Napoleonic Code.
In the succeeding decades, some parts of the 1917 Code were retouched, especially under Pope Pius XII. In 1959, Pope John XXIII announced, together with his intention to call the Second Vatican Council a Synod of the Diocese of Rome, that the 1917 Code would be completely revised. In 1963, the commission appointed to undertake the task decided to delay the project until the Council had been concluded. After the Second Ecumenical Council of the Vatican (Vatican II) closed in 1965, it became apparent that the Code would need to be revised in light of the documents and theology of Vatican II. When work finally began, almost two decades of study and discussion on drafts of the various sections were needed before Pope John Paul II could promulgate the revised edition, which came into force on 27 November 1983, having been promulgated via the apostolic constitution Sacrae Disciplinae Leges of 25 January 1983. Containing 1752 canons, it is the law currently binding on the Latin Church.
Oriental canon law
For Eastern Catholics two sections of Oriental canon law had already, under Pope Pius XII, been put in the form of short canons. These parts were revised as part of the application of Pope John XXIII's decision to carry out a general revision of the Church's canon law; as a result a distinct Code for members of the Eastern Catholic Churches came into effect for the first time on 1 October 1991 (Apostolic Constitution Sacri Canones of 18 October 1990). The Code of Canons of the Eastern Churches, as it is called, differs from the Latin 1983 Code of Canon Law in matters where Eastern and Latin traditions diverge, such as terminology, discipline concerning hierarchical offices and administration of the sacraments.
Jurisprudence of canon law
The institutions and practices of canon law paralleled the legal development of much of Europe, and consequently both modern civil law and common law bear the influences of canon law. Much of the legislative style was adapted from that of Roman Law especially the Justinianic Corpus Juris Civilis. After the 'fall' of the Roman Empire and up until the revival of Roman Law in the 11th century canon law served as the most important unifying force among the local systems in the Civil Law tradition. The Catholic Church developed the inquisitorial system in the Middle Ages. The canonists introduced into post-Roman Europe the concept of a higher law of ultimate justice, over and above the momentary law of the state.
The primary canonical sources of law are the 1983 Code of Canon Law, the Code of Canons of the Eastern Churches, and Pastor Bonus. Other sources include apostolic constitutions, motibus propriis, particular law, and—with the approbation of the competent legislator—custom. A law must be promulgated for it to have legal effect. A later and contrary law obrogates an earlier law.
Canonists have formulated interpretive rules of law for the magisterial (non-legislatorial) interpretation of canonical laws. An authentic interpretation is an official interpretation of a statute issued by the statute's legislator, and has the force of law.
Philosophy, theology, and fundamental theory of canon law
Although canonical jurisprudential theory generally follows the principles of Aristotelian-Thomistic legal philosophy, Thomas Aquinas never explicitly discusses the place of canon law in his Treatise on Law However, Aquinas himself was influenced by canon law. While many canonists apply the Thomistic definition of law (lex) to canon law without objection, some authors dispute the applicability of the Thomistic definition to canon law, arguing that its application would impoverish ecclesiology and corrupt the very supernatural end of canon law.
In the decades following the Second Vatican Council, many canonists called for a more theological, rather than philosophical, conception of canon law, acknowledging the "triple relationship between theology, philosophy, and canon law". Some authors conceive of canon law as essentially theological and the discipline of canon law as a theological subdiscipline, but Msgr. Carlos José Errázuriz contends that "in a certain sense, all postconciliar canonical scholarship has shown a theological concern in the widest sense, that is, a tendency to determine more clearly the place of the juridical in the mystery of the Church."
The fundamental theory of canon law is a discipline covering the basis of canon law in the very nature of the church. Fundamental theory is a newer discipline that takes as is object "the existence and nature of what is juridical in the Church of Jesus Christ." The discipline seeks to better explain the nature of law in the church and engages in theological discussions in post-conciliar Catholicism and seeks to combat "postconciliar antijuridicism".
Canonistics, faculties, and institutes
The academic degrees in canon law are the J.C.B. (Juris Canonici Baccalaureatus, Bachelor of Canon Law, normally taken as a graduate degree), J.C.L. (Juris Canonici Licentiatus, Licentiate of Canon Law) and the J.C.D. (Juris Canonici Doctor, Doctor of Canon Law), and those with a J.C.L. or higher are usually called "canonists" or "canon lawyers". Because of its specialized nature, advanced degrees in civil law or theology are normal prerequisites for the study of canon law. Canon law as a field is called Canonistics.
Canon law and Church office
Under the 1983 Code of Canon Law, all seminary students are required to take courses in canon law. Some ecclesiastical officials are required to have the doctorate (JCD) or at least the licentiate (JCL) in canon law in order to fulfill their functions: judicial vicars; judges; promoters of justice; defenders of the bond; canonical advocates. In addition, vicars general and episcopal vicars are to be doctors, or at least licensed in canon law or theology. Ordinarily, bishops are to have an advanced degree (doctorate or at least licentiate) in scripture, theology, or canon law.
Faculties and institutes of canon law
- Berman, Law and Revolution, pg. 202.
- Berman, Law and Revolution, pg. 253
- Smith, Elements of Ecclesiastical Law, Vol. I (9th ed.), pg. 9. Internet Archive, accessed 28 March 2016.
- Rev. James Socias (gen. edit.), Our Moral Life in Christ. (Chicago: Midwest Theological Forum, 2003), 84.
- Della Rocca, Fernando, Manual of Canon Law (Milwaukee: The Bruce Publishing Company, 1959) trans. The Rev. Anselm Thatcher, O.S.B., pg. 9.
- Canon 832 as found in http://www.vatican.va/archive/ENG1104/__P2Q.HTM
- Berman, Law and Revolution, pg. 199
- A COMMENTARY ON THE NEW CODE OF CANON LAW BY THE REV. P. CHAS. AUGUSTINE O.S.B., D.D., Volume I: Introduction and General Rules (can. 1-86), SECOND EDITION (St. Louis: B. HERDER BOOK CO., 1918).
- Dr. Edward N. Peters, CanonLaw.info Home Page, accessed June-11-2013
- Mylne, The Canon Law, pg. 22.
- Manual of Canon Law, pg. 13, #8
- Blessed John Paul II, Ap. Const.Sacri Canones
- Manual of Canon Law, pg. 14
- Law and Revolution, pg. 116
- Law and Revolution, pg. 240
- Dr. Kenneth J. Pennington, Ph.D., CL701, CUA School of Canon Law, "History of Canon Law, Day 1", around 0:25:30, accessed 8-15-2014
- Rommen, Natural Law, pg. 38-39
- NYTimes.com, Neighbors and Wives book review of Nov-13-1988, accessed 27 June 2013
- Dr. Edward N. Peters, A suggestion for reordering the major divisions of canonical history, accessed 16 May 2013
- CanonLaw.info, accessed Jan-19-2013
- John XXIII, allocution Questa festiva (25 Jan. 1959), AAS 51 (1959) pp. 68-69
- CanonLaw.info, "Legislative History of the 1983 Code of Canon Law"; accessed June-7-2013
- NYTimes.com, "New Canon Law Code in Effect for Catholics", 27-Nov-1983, accessed June-25-2013
- Britannica "Canon Law", accessed 6-24-2013
- Can. 1, 1983 CIC ("The Canons of this code regard only the Latin Church.")
- Rommen, Heinrich A., Natural Law, pg. 114
- Friedman, Lawrence M., American Law, pg. 70
- NYTimes.com, "Pope to Codify Canon Law", 1-Apr-1904, accessed 25-June-2013
- McCormick, Anne O'Hare. Vatican Journal, pg. 44
- Comparative Legal Traditions, pg. 43
- TheFreeDictionary.com, accessed June-28-2013
- Wormser, The Story of the LAW, pg. 189
- Dr. Edward Peters, CanonLaw.info, accessed June-9-2013
- Code of Canons of the Eastern Churches, Latin-English Edition, New English Translation (Canon Law Society of America, 2001), page xxv
Cf. Pastor Bonus n. 2
- 1983 Code, canon 7.
- Catholic Encyclopedia 1913, "Words (In Canon Law)"
- J. Budziszewski, The Architecture of Law According to Thomas Aquinas; accessed 14 March 2016
- Blackfriars Summa Theologiæ Vol. 28, pg. 16 [notes by Thomas Gilby O.P. on Summa Ia-IIæ, q. 90, a. 4]
- Exegetical Commentary on the Code of Canon Law, Vol. I, pg. 261-262 (commentary on 1983 CIC, Book I, Title I)
- Errázuriz, "Justice in the Church", pg. 71
- Ladislas Orsy, "Towards a Theological Conception of Canon Law" (published in Jordan Hite, T.O.R., & Daniel J. Ward, O.S.B., "Readings, Cases, Materials in Canon Law: A Textbook for Ministerial Students, Revised Edition" (Collegeville, MN: The Liturgical Press, 1990), pg. 11
- Errázuriz M., Fundamental Theory, 3
- Errázuriz M., Fundamental Theory, xvii.
- Errázuriz M., Fundamental Theory, 59 et seq.
- Errázuriz M., Fundamental Theory, 62
- 1983 CIC, can. 252 §3
- 1983 CIC, can. 1420 §4
- 1983 CIC, can. 1421 §3
- 1983 CIC, can. 1435
- 1983 CIC, can. 1483
- 1983 CIC, can. 478 §1
- 1983 CIC, can. 378 §1 °5
Arranged alphabetically by author.
- Aquinas, Thomas. "St. Thomas Aquinas: Summa Theologiæ, Volume 28: Law and Political Theory (Ia2æ. 90-97); Latin text. English translation, Introduction, Notes, Appendices & Glossary [by] Thomas Gilby O.P.", Blackfriars (Cambridge: Eyre and Spottiswoode Limited, 1966).
- Berman, Harold J., Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, MA: Harvard University Press, 1983).
- Benedict XVI, Pope. Address of His Holiness Benedict XVI for the Inauguration of the Judicial Year of the Tribunal of the Roman Rota, Clementine Hall, 21 January 2012. https://w2.vatican.va/content/benedict-xvi/en/speeches/2012/january/documents/hf_ben-xvi_spe_20120121_rota-romana.html Accessed 29 March 2016.
- Caparros, Ernest. Exegetical Commentary on the Code of Canon Law, Volume I: Prepared under the Responsibility of the Martín de Azpilcueta Institute, Faculty of Canon Law, University of Navarre (Chicago, Illinois: Midwest Theological Forum, 2004) Edited by Ángel Marzoa, Jorge Miras and Rafael Rodríguez-Ocaña (English language edition General editor: Ernest Caparros; Review coordinator: Patrick Lagges).
- Della Rocca, Fernando, Manual of Canon Law (Milwaukee: The Bruce Publishing Company, 1959) translated by Rev. Anselm Thatcher, O.S.B.
- Errázuriz M., Carlos José. Justice in the Church: A Fundamental Theory of Canon Law (Montreal: Wilson & Lefleur Ltée, 2009) trans. Jean Gray in collaboration with Michael Dunnigan.
- Friedman, Lawrence M. American Law: An Introduction (New York: W.W. Norton & Company, 1984).
- Glendon, Mary Anne, Michael Wallace Gordon, Christopher Osakwe, Comparative Legal Traditions: Text, Materials and Cases (American Casebook Series) (St. Paul, MN: West Publishing Co., 1985).
- Jordan, William Chester. The Penguin History of Europe: Europe in the High Middle Ages (London: Penguin Books, 2002).
- McCormick, Anne O'Hare. Vatican Journal: 1921-1954 (New York: Farrar, Straus and Cudahy, 1957).
- Mylne, Robert Scott. The Canon Law (Published by Forgotten Books 2013; originally published 1912). PIBN 1000197046.
- Orsy, Ladislas. Towards a Theological Conception of Canon Law (essay published in Jordan Hite, T.O.R., & Daniel J. Ward, O.S.B., Readings, Cases, Materials in Canon Law: A Textbook for Ministerial Students, Revised Edition (Collegeville, MN: The Liturgical Press, 1990).
- Peters, Dr. Edward N., translator, The 1917 or Pio-Benedictine Code of Canon Law: in English Translation with Extensive Scholarly Apparatus (Ignatius Press, 2001)
- Peters, Dr. Edward N., JD, JCD, Ref. Sig. Ap., CanonLaw.info
- Rommen, Heinrich A. The Natural Law: A Study in Legal and Social History and Philosophy (St Louis: B. Herder Book Co., 1947 ) translated by Thomas R. Hanley, O.S.B.
- Wormser, René A., The Story of the LAW and the Men Who Made It—From the Earliest Times to the Present: Revised and Updated Edition of The Law (New York: Simon and Schuster, 1962).
- Black's Law Dictionary, 5th Edition (St. Paul, MN: West Publishing Co., 1979).
- Catechism of the Catholic Church at Vatican.va
- 1983 Code of Canon Law (1983 CIC) at Vatican.va. Publication details: Latin-English Edition, New English Translation; Prepared under the auspices of the Canon Law Society of America, Washington, DC 20064.
- J. Laurentius, S.J, Institutiones Juris Bed., 1903, p. 9; that the natural law should be cautiously used in Canon Law. Schenkl, I. c- t 37, justly remarks
|Wikisource has the text of the 1913 Catholic Encyclopedia article Canon Law.|
- Sacrea Disciplinae Leges (Document establishing the 1983 Code of Canon Law)
- Norms of current canon law (Table of canonical norms which are currently in force)
- Canon Law Wiki (Notes, Commentary, Discussion, Papers & Bibliography on Canon Law)
Texts and translations of Codes of Canon Law
With referenced concordances
- Codex Iuris Canonici (1983) (in Latin)
- Code of Canon Law (1983) (Translation by Canon Law Society of America – via vatican.va. Includes 1998 modification of canons 750 and 1371.)
- Code of Canon Law (1983) (Translation by the Canon Law Society of Great Britain and Ireland, assisted by the Canon Law Society of Australia and New Zealand and the Canadian Canon Law Society)
- Codex canonum ecclesiarum orientalium (1990) (in Latin)
- "Code of canons of Oriental Churchs" (1990) (Translation by Canon Law Society of America)
- Codex Iuris Canonici (1917) (in Latin) (Abrogated by 1983 Code of Canon Law)
- Code de 1917 (in French) (Abrogated by 1983 Code of Canon Law)