Canon law (Catholic Church)

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The canon law of the Catholic Church (Latin: jus canonicum)[1] is the system of laws and legal principles made and enforced by the hierarchical authorities of the Church to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church.[2] It was the first modern Western legal system[3] and is the oldest continuously functioning legal system in the West,[4] while the unique traditions of Oriental canon law govern the 23 Eastern Catholic particular churches sui iuris.

Positive ecclesiastical laws, based directly or indirectly upon immutable divine law or natural law, derive formal authority in the case of universal laws from promulgation by the supreme legislator—the Supreme Pontiff)—who possesses the totality of legislative, executive, and judicial power in his person,[5] while particular laws derive formal authority from promulgation by a legislator inferior to the supreme legislator, whether an ordinary or a delegated legislator. The actual subject material of the canons is not just doctrinal or moral in nature, but all-encompassing of the human condition. It has all the ordinary elements of a mature legal system:[6] laws, courts, lawyers, judges,[6] a fully articulated legal code for the Latin Church[7] as well as a code for the Eastern Catholic Churches,[7] principles of legal interpretation,[8] and coercive penalties.[9] It lacks civilly-binding force in most secular jurisdictions. Those who are versed and skilled in canon law, and professors of canon law, are called canonists[10] (or colloquially, canon lawyers).[11] Canon law as a sacred science is called canonistics.

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.

Definitions

The term "canon law" (jus canonicum) was only regularly used from the twelfth century onwards.[12] 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.[12] The term corpus juris canonici was used to denote canon law as legal system beginning in the thirteenth century.[13]

Other terms sometimes used synonymously with jus canonicum include jus sacrum, jus ecclesiasticum, jus divinum, and jus pontificium.[14]

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.[15] 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.[16]

Examples of ecclesiastical positive law are fasting during the liturgical season of Lent, and religious workers (monks, nuns, etc.) requiring permission from their superiors to publish a book.[15][17]

Etymology of "canon"

Main article: Canon (canon law)

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.[18] 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.[18]

Legal history and codification

Latin canon law

See also: Latin Church

The Catholic Church has the oldest continuously functioning legal system in the West,[4] 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.[19]

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.[20] 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).[20]

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.[21]

St. Raymond of Penyafort (1175–1275), a Spanish Dominican priest, is the patron saint of canonists,[4] 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.

Jus Antiquum

Image of pages from the Decretum of Burchard of Worms, the 11th-century book of canon law.

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).[20] 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).[22]

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.

In the first millennium of the Roman Church, the canons of various ecumenical and local councils were supplemented with decretals of the popes; these were gathered together into collections.

Jus Novum

Main article: Corpus Juris Canonici
Gratian,
the "Father of Canon Law"

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).[20]

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.[23] 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[24] (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".[25] Gratian also had an enormous influence on the history of natural law in his transmission of the ancient doctrines of natural law to Scholasticism.[26]

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.[27] 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).

Jus Novissimum

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.[20] 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.[28]

Jus Codicis

Pietro Cardinal Gasparri, Architect of the 1917 Code of Canon Law

The fourth period of canonical history is that of the present day, initiated by the promulgation of the 1917 Code of Canon Law[20] on 27 May 1917.[29] 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").[20] 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.

Pio-Benedictine law

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.

Johanno-Pauline law

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.[30][31] 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,[32] having been promulgated via the apostolic constitution Sacrae Disciplinae Leges of 25 January 1983. Containing 1752 canons,[33] it is the law currently binding on the Latin Church.

This edition is referred to as the 1983 Code of Canon Law to distinguish it from the 1917 Code. Like the preceding edition, it applies to Roman Catholics of the Latin Church.[34]

Oriental canon law

Main article: 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

Portrayal of a meeting of the Roman Rota

The institutions and practices of canon law paralleled the legal development of much of Europe, and consequently both modern civil law and common law[35][36] bear the influences of canon law. Much of the legislative style was adapted from that of Roman Law especially the Justinianic Corpus Juris Civilis.[37][38] 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.[39] The Catholic Church developed the inquisitorial system in the Middle Ages.[40] 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.[41]

The primary canonical sources of law are the 1983 Code of Canon Law,[42][15] the Code of Canons of the Eastern Churches,[42] and Pastor Bonus.[43] 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.[44] 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.[45]

Philosophy, theology, and fundamental theory of canon law

Summa theologica, Pars secunda, prima pars. (copy by Peter Schöffer, 1471)

Although canonical jurisprudential theory generally follows the principles of Aristotelian-Thomistic legal philosophy,[4] Thomas Aquinas never explicitly discusses the place of canon law in his Treatise on Law[46] However, Aquinas himself was influenced by canon law.[47] 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.[48]

In the decades following the Second Vatican Council, many canonists called for a more theological, rather than philosophical, conception of canon law,[49] acknowledging the "triple relationship between theology, philosophy, and canon law".[50] Some authors conceive of canon law as essentially theological and the discipline of canon law as a theological subdiscipline,[49] 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."[49]

The fundamental theory of canon law is a discipline covering the basis of canon law in the very nature of the church.[51] 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."[52] The discipline seeks to better explain the nature of law in the church and engages in theological discussions in post-conciliar Catholicism[53] and seeks to combat "postconciliar antijuridicism".[54]

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.[55] 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;[56] judges;[57] promoters of justice;[58] defenders of the bond;[58] canonical advocates.[59] In addition, vicars general and episcopal vicars are to be doctors, or at least licensed in canon law or theology.[60] Ordinarily, bishops are to have an advanced degree (doctorate or at least licentiate) in scripture, theology, or canon law.[61]

Faculties and institutes of canon law

Number University Name of entity City Country
1
 Catholic University of West Africa Higher Institute of Canon Law Abidjan  Ivory Coast
2
 Catholic University of Central Africa Autonomous Department of Canon Law Yaoundé  Cameroon
3
 Catholic University of Congo Faculty of Canon Law Kinshasa  Democratic Republic of the Congo
4
 Saint Paul University Faculty of Canon Law Ottawa  Canada
5
 Pontifical University of Mexico Faculty of Canon Law Mexico City  Mexico
6
 The Catholic University of America School of Canon Law Washington, D.C.  USA
7
 Pontifical Catholic University of Argentina Faculty of Canon Law of Saint Turibius of Mongrovejo Buenos Aires  Argentina
8
 Pontifical Institute of Canon Law Pontifical Higher Institute of Canon Law Rio de Janeiro  Brazil
9
 Pontifical Faculty of Theology of Our Lady of the Assumption Institute of Canon Law of Fr Dr. Giuseppe Benito Pegoraro São Paulo  Brazil
10
 Pontifical Xavierian University Faculty of Canon Law Bogotá  Colombia
11
 St. Peter's Pontifical Institute of Theology Centre of Canon Law Studies Bangalore  India
12
 Dharmaram Vidya Kshetram Institute of Oriental Canon Law Bangalore  India
13
 Sagesse High School Faculty of Canon Law Beirut  Lebanon
14
 University of Santo Tomas Faculty of Canon Law Manila  Philippines
15
 Katholieke Universiteit Leuven Faculty of Canon Law Leuven  Belgium
16
 Université catholique de Louvain Faculty of Canon Law Louvain-la-Neuve  Belgium
17
 Academy of Canon Law Brno  Czech Republic
18
 Institut Catholique de Paris Faculty of Canon Law Paris  France
19
 University of Strasbourg Institute of Canon Law Strasbourg  France
20
 Catholic University of Toulouse Faculty of Canon Law Toulouse  France
21
 Ludwig Maximilian University of Munich Institute of Canon Law of Klaus Mörsdorf Munich  Germany
22
 University of Münster Faculty of Canon Law Münster  Germany
23
 Pázmány Péter Catholic University Institute of Canon Law Budapest  Hungary
24
 St Patrick's College Faculty of Canon Law Maynooth  Ireland
25
 Pontifical Gregorian University Faculty of Canon Law Vatican City   Vatican City
26
 Pontifical Lateran University Faculty of Canon Law Vatican City   Vatican City
27
 Pontifical University of Saint Thomas Aquinas, Angelicum Faculty of Canon Law Rome  Italy
28
 Pontifical University Antonianum Faculty of Canon Law Rome  Italy
29
 Pontifical Urbaniana University Faculty of Canon Law Vatican City   Vatican City
30
 Salesian Pontifical University Faculty of Canon Law Rome  Italy
31
 Pontifical Oriental Institute Faculty of Oriental Canon Law Vatican City   Vatican City
32
 Pontifical University of the Holy Cross Faculty of Canon Law Vatican City   Vatican City
33
 Studium Generale Marcianum Faculty of Canon Law of St Pius X Venice  Italy
34
 Pontifical University of John Paul II Faculty of Canon Law Kraków  Poland
35
 John Paul II Catholic University of Lublin Faculty of Law, Canon Law and Administration Lublin  Poland
36
 University of Warmia and Mazury in Olsztyn Faculty of Teology Olsztyn  Poland
37
 Cardinal Stefan Wyszyński University in Warsaw Faculty of Canon Law Warsaw  Poland
38
 Catholic University of Portugal Higher Institute of Canon Law Lisbon  Portugal
39
 Comillas Pontifical University Faculty of Canon Law Madrid  Spain
40
 Ecclesiastical University St Damasus Faculty of Canon Law Madrid  Spain
41
 University of Navarre Faculty of Canon Law Pamplona  Spain
42
 Pontifical University of Salamanca Faculty of Canon Law Salamanca  Spain
43
 Valencia Catholic University Saint Vincent Martyr Faculty of Canon Law Valencia  Spain

Related terms

Footnotes

  1. ↑ Black's Law Dictionary, 5th Edition, pg. 771: "Jus canonicum"
  2. ↑ Della Rocca, Manual of Canon Law, pg. 3
  3. ↑ Berman, Harold J. Law and Revolution, pg. 86 & pg. 115
  4. 1 2 3 4 Dr. Edward N. Peters, CanonLaw.info Home Page, accessed June-11-2013
  5. ↑ Canon 331, 1983 Code of Canon Law
  6. 1 2 Edward N. Peters, "A Catechist's Introduction to Canon Law", CanonLaw.info, accessed June-11-2013
  7. 1 2 Manual of Canon Law, pg. 49
  8. ↑ 1983 Code of Canon Law
  9. ↑ St. Joseph Foundation newsletter, Vol. 30 No. 7, pg. 3
  10. ↑ Black's Law Dictionary, 5th Edition, pg. 187: "Canonist"
  11. ↑ Berman, Law and Revolution, pg. 288
  12. 1 2 Berman, Law and Revolution, pg. 202.
  13. ↑ Berman, Law and Revolution, pg. 253
  14. ↑ Smith, Elements of Ecclesiastical Law, Vol. I (9th ed.), pg. 9. Internet Archive, accessed 28 March 2016.
  15. 1 2 3 Rev. James Socias (gen. edit.), Our Moral Life in Christ. (Chicago: Midwest Theological Forum, 2003), 84.
  16. ↑ Della Rocca, Fernando, Manual of Canon Law (Milwaukee: The Bruce Publishing Company, 1959) trans. The Rev. Anselm Thatcher, O.S.B., pg. 9.
  17. ↑ Canon 832 as found in http://www.vatican.va/archive/ENG1104/__P2Q.HTM
  18. 1 2 Berman, Law and Revolution, pg. 199
  19. ↑ Mylne, The Canon Law, pg. 22.
  20. 1 2 3 4 5 6 7 Manual of Canon Law, pg. 13, #8
  21. ↑ Blessed John Paul II, Ap. Const.Sacri Canones
  22. ↑ Manual of Canon Law, pg. 14
  23. ↑ Law and Revolution, pg. 116
  24. ↑ Law and Revolution, pg. 240
  25. ↑ 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
  26. ↑ Rommen, Natural Law, pg. 38-39
  27. ↑ NYTimes.com, Neighbors and Wives book review of Nov-13-1988, accessed 27 June 2013
  28. ↑ Dr. Edward N. Peters, A suggestion for reordering the major divisions of canonical history, accessed 16 May 2013
  29. ↑ CanonLaw.info, accessed Jan-19-2013
  30. ↑ John XXIII, allocution Questa festiva (25 Jan. 1959), AAS 51 (1959) pp. 68-69
  31. ↑ CanonLaw.info, "Legislative History of the 1983 Code of Canon Law"; accessed June-7-2013
  32. ↑ NYTimes.com, "New Canon Law Code in Effect for Catholics", 27-Nov-1983, accessed June-25-2013
  33. ↑ Britannica "Canon Law", accessed 6-24-2013
  34. ↑ Can. 1, 1983 CIC ("The Canons of this code regard only the Latin Church.")
  35. ↑ Rommen, Heinrich A., Natural Law, pg. 114
  36. ↑ Friedman, Lawrence M., American Law, pg. 70
  37. ↑ NYTimes.com, "Pope to Codify Canon Law", 1-Apr-1904, accessed 25-June-2013
  38. ↑ McCormick, Anne O'Hare. Vatican Journal, pg. 44
  39. ↑ Comparative Legal Traditions, pg. 43
  40. ↑ TheFreeDictionary.com, accessed June-28-2013
  41. ↑ Wormser, The Story of the LAW, pg. 189
  42. 1 2 Dr. Edward Peters, CanonLaw.info, accessed June-9-2013
  43. ↑ 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
  44. ↑ 1983 Code, canon 7.
  45. ↑ Catholic Encyclopedia 1913, "Words (In Canon Law)"
  46. ↑ J. Budziszewski, The Architecture of Law According to Thomas Aquinas; accessed 14 March 2016
  47. ↑ Blackfriars Summa Theologiæ Vol. 28, pg. 16 [notes by Thomas Gilby O.P. on Summa Ia-IIæ, q. 90, a. 4]
  48. ↑ Exegetical Commentary on the Code of Canon Law, Vol. I, pg. 261-262 (commentary on 1983 CIC, Book I, Title I)
  49. 1 2 3 Errázuriz, "Justice in the Church", pg. 71
  50. ↑ 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
  51. ↑ Errázuriz M., Fundamental Theory, 3
  52. ↑ Errázuriz M., Fundamental Theory, xvii.
  53. ↑ Errázuriz M., Fundamental Theory, 59 et seq.
  54. ↑ Errázuriz M., Fundamental Theory, 62
  55. ↑ 1983 CIC, can. 252 §3
  56. ↑ 1983 CIC, can. 1420 §4
  57. ↑ 1983 CIC, can. 1421 §3
  58. 1 2 1983 CIC, can. 1435
  59. ↑ 1983 CIC, can. 1483
  60. ↑ 1983 CIC, can. 478 §1
  61. ↑ 1983 CIC, can. 378 §1 °5

Bibliography

Arranged alphabetically by author.

External links

Wikisource has the text of the 1913 Catholic Encyclopedia article Canon Law.

Texts and translations of Codes of Canon Law

With referenced concordances

Without concordances

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