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Introduction to Canon Law

Chapter I
Juridicity in the Church

A. Rules in a Church Community

Names

Every church, although based on what its members believe to be

divine revelation, is also a human institution. As human communities,
churches require rules.
The Roman Catholic Church is a particularly large and far-flung
community of faith. It claims about 850 million members worldwide. And it
is ancient. It traces its origins back to Jesus Christ in the first century of this
era, and considers itself to be in continuity with his teachings and those of
his disciples. The church, through the centuries, has accrued a lot of rules.
The generic name in English for the rules of the Roman Catholic Church
is ‘canon law’. ‘Law’ is a familiar term; its meaning is well known. It is a
measure or norm of conduct. We are induced to act or refrain from acting in
accord with the law. Laws are products of reason, and they are directed
toward the common good of the society for which they are given.
‘Canon’ is not as common a word, but it has been used to describe the
church’s rules form very early times. ‘Canon’ comes from the Greek word
kanon, which means reed, rod or ruler. It described the measure or ruler
used by a carpenter or designer. It was a standard by which things were
measured. It came to mean a rule of conduct. (It is used in this sense in the
New Testament; cf. Gal 6:16 ad Phil 3:16.) In English, we speak of the
accepted standards of art or professional practice as canons. The Latin word
regula also means rule, pattern or model, and from it our term ‘regulation’ is
derived.
Both Greek and Latin have other words for ‘law’: nomos and lex. But
the church chose to name its rules ‘canons’ because it recognized that its
rule were different from the laws of the Roman Empire. Indeed, canons are
compared to the advisory opinions of the Roman Senate, senatus consulta.
They gave a ‘sense of the Senate,’ and were not lightly disregarded, but they
were not the same as the laws of the realm.
From the beginning of the Church, the term ius canonicum was used to
indicate all of the laws of the Church. This term was used often throughout
the centuries, until it was finally taken up officially in the titles of the 1917
and 1983 Codes. Ius canonicum thus indicates all of the rules (canones,
leges) that are proposed (propositae), promulgated (constitutae), or
approved (approbatae seu receptae) by the ecclesiastical authority.
Up to the 16th century, the term ius ecclesiasticum was widely used
along with and as a synonym for ius canonicum, to designate all
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ecclesiastical laws. Ius ecclesiasticum and ius canonicum were used
interchangeably.
From the 17th century on, ius ecclesiasticum acquired a separate
meaning, one introduced by Protestant writers. These understood the
expression to mean the laws issued by the civil authorities, in religious
matters, on their own initiative and by virtue of a jurisdiction that they had
assumed in ecclesiastical affairs.
Later on, the term was used for the body of civil law concerning
ecclesiastical matters that was issued by the emperors in virtue of their
authority in sacra.
In the 19th century and in the beginning of the 20 th century, there were
three different understandings of the term:
*Ius canonicum was synonymous with ius ecclesiasticum and indicated
the entirety of the Church’s own legislation as in the Middle Ages.
*Ius canonicum was the law contained in the Corpus Iuris Canonici; ius
eccleiasticum was the law of the Church itself after the corpus. Both
understandings used the terms droit civil ecclesiastique, diritto ecclesiastico
to describe civil law in ecclesiastical matters.
*Ius canonicum was exclusively canon law proper; ius ecclesiasticum,
however, was the Church’s own law as a whole, the civil law in ecclesiastical
matters, and concordatory law. Thus, all of ius canonicum was ius
ecclesiasticum, but not all ius ecclesiasticum was ius canonicum.
In the 1917 and 1983 Codes, ius canonicum is synonymous with ius
ecclesiasticum and the terms are used interchangeably. They indicate the
Church’s own law. In practice, however, preference is given to the
expression ius canonicum to indicate the Church’s own law and to ius
ecclesiasticum for civil law in ecclesiastical matters or for concordatory law.
‘Canon law’ is a rather unfortunate English translation of the Latin ius
canonicum. Ius does not have an exact English equivalent. It can mean a
legal system (e.g. Ius Romanum, Roman law), or a subjective right (e.g. ius
ad rem, right to a thing), or the objective of justice, that which is right, due
or just. Most other modern languages translate ius as right: droit, diritto,
derecho, recht. In English, in reference to the church’s system of rules, we
translate it as law. (To translate ius canonicum literally as ‘canonical right’
just wouldn’t work.) The other languages clearly distinguish canon law from
civil or secular law, but in English there is a tendency to equate the two very
different systems of rules, because of the use of the same word, law.
So ‘canon law’ is slightly redundant and infelicitous descriptive title for
the rules which govern the public order of the Roman Catholic Church. It
names our ecclesiastical regulations.
Those norms which describe the basic structures of the church, e.g.
the papal and Episcopal offices, the sacramental system, constitute Roman
Catholic ‘church order.’ Those which set forth individual regulations, e.g. the
age for confirmation, the requirements for ordination, are considered to be
‘church discipline.’ Canon law includes both order and discipline.
Canons are rules or norms for the governance of the external life of the
church.
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Scope

The canons have to do with church order and discipline rather than
doctrine and dogma. It is important to recognize that canon law contains
guidelines for actions, not beliefs. It presents norms of conduct, not the
content of faith. For official church teaching one consults the teaching
documents, e.g. the documents of the Second Vatican Council, not the Code
of Canon Law.
Theology is concerned with God’s revelation and the church’s
teachings. Canon law is concerned with the patterns of practice within the
community of faith. They are distinct but closely related disciplines.
Systematic and moral theologians teach about the limits of the teaching
office or the defense of someone accused of teaching falsehood.
Canon law governs the external order of the church, the public life of
the faith community. It does not attempt to measure or compel personal
conscience or moral judgments. Canon law pertains almost exclusively to
‘external forum,’ the arena of the church’s public governance, as over
against the ‘internal forum,’ the arena of conscience.

Purpose and functions

The church is a radically different kind of community than the state or

other secular societies. As a result, its system or rules has a different
purpose than other legal systems.
The church is a mystery, a reality imbued with the presence of God. It
is the temple of the Holy Spirit, resplendent with the Spirit’s gifts. It is the
sacrament of Christ, the visible and effective sign of is saving work in the
world. The church is a communion, that is, a unique set of interrelationships
among its members and with God, based on faith and love. But the church is
also a human community made up of ornery, erring and sinful people.
The church is sui generis, in a class by itself. It differs from all other
human societies in its origins, its history, its inner dynamism and its destiny.
Consequently, the church’s system of rules must function differently from
that of any other society.
Pope John Paul II, when he promulgated the Code of Canon Law in
1983, described its purpose as follows:

“The purpose of the Code is not to substitute for the faith,

grace, charisms, and especially charity in the life of the Church or
of the Christian faithful. On the contrary, its very purpose is to
create an order in the ecclesial society so that, while giving
priority to love, grace, and charism, their ordered development is
facilitated in the life of the ecclesial society as well as in the lives
of the individuals who belong to it.” (Apostolic Constitution, Sacrae
disciplinae leges).

This is true not only of the Code, but of all of canon law as well.
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Law has at least four functions in any society, and, by analogy,
canonical rules fulfill these functions within the Church:

1. Law is to aid a society in the achievement of its goals. It is to

facilitate the attainment of the purpose or common good of society.
Canon law helps the gathered community of the Christian faithful to
be what it is meant to be, and to carry out its mission in the world.
The Church is to proclaim the life and message of Christ, to be a
communal witness to the loving presence of God, and to be of
service to the world of today. The church’s discipline is to aid it in
carrying out those central tasks. The Church has a transcendent
spiritual purpose as well: the ultimate salvation of its members,
their reconciliation and communion with God. Hence, the classic
canonical maxim: “The salvation of souls is the supreme law” (salus
animarum suprema lex; cf. c. 1752). All else must defer to this end.
2. Law is to afford stability to the society, that is, provide good order,
reliable procedures, and predictable outcomes. The Church needs
the tranquility of order in its life, just as other societies do. Leaders
need to be elected, sacraments celebrated, the word of God
preached, decisions made, property administered. The community
of faith has a right to expect reasonable, appropriate and
predictable ways of doing these everyday things. The canons
govern these functions, which are vital as well as stabilizing.
3. Law is to protect personal rights, provide avenues of recourse and
redress of grievances, and means for the resolution of conflicts.
What the Church has in common with all other visible, human
societies is relationships involving rights and obligations, that is, a
juridic order. Its juridic life must be conducted with justice and
fairness for all its members. This is another task of its canons of
discipline: to articulate the rights and duties of the faithful, and to
provide means for their protection.
4. Finally, law is to assist in the education of the community by
reminding everyone of its values and standards. The Church
requires such continual education and, although much of its
teaching is done in other ways, the canons help. Canon law spells
out the expectation of members, the qualifications for office-
holders, and the ideals of religious life. The Church’s discipline is
concerned to lead people to a virtuous life, not simply an external
compliance with rules. Not satisfied with justice, canon law, at its
best, challenges the Church to strive toward love as its goal.

The canons also help to create and maintain the metaphors and
symbols which influence the faithful subtly but strongly. For example, the
canons call marriage a covenant rather than a contract, and a parish is
described as a community of the faithful rather than a territorial part of a
diocese. The effects of these characterizations, over time, are profound.
Canon law shapes and guides the life of the church in many ways. For
those who care about the church, it is important to understand its rules.
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B. New Testament Roots of the Rules

The most sacred and revered of the classic sources for the Christian
tradition is the New Testament. The books of the New Testament emerged
from the living churches of the first century. We believe, their authors were
moved by the Holy Spirit, but they also wrote from their own experiences
and memories as members of or visitors to what we now call “local
churches.” The gospels and letters, in addition to all they tell us about the
life, words and works of Jesus, tell us a lot about their rules.
Every human society develops patterns of action, which eventually
become rules of behavior. The first Christian churches developed regulations
to help them live in orderly and Christ-like ways. The New Testament is
replete with indications of these earliest rules. Indeed, many of our present
“canon laws” are rooted in these originating writings.
What follows is simply a range of examples of rules or policies of those
early churches drawn from the pages of the New Testament. They are not
arranged in any special order, nor are they analyzed. The examples are
simply presented to bear witness to the fact that the very first Christian
communities received or evolved rules for their lives. They were not
amorphous or spontaneously charismatic groupings. The churches had
orderly structures and procedures.
The local congregations were linked to one another in a fellowship of
faith and caring (e.g., Paul’s collection for the church of Jerusalem, Rom
15:26). There was a structured authority within each local church (e.g. list of
ministries, 1 Cor 12:28; Eph 4:11; references to elders and overseers, i.e.,
presbyters and bishops, Acts 20; Phil 1:1). The church had a conciliar,
consultative process for making decisions, especially on major policy matters
(e.g., the “Gentile question” and the “Council of Jerusalem” in Acts 15 and
Gal 2). The participants were obviously conscious of being guided by the
Holy Spirit (Acts 15:28).
To hold a position of authority among the disciples of Jesus meant to
serve the others, after the example of the Master (Mt. 20:25; Mk. 10:42; Lk.
22:25). The qualifications for office-holders were enumerated (1 Tim 3 & 5;
Tit 1:7), and the responsibilities attached to those offices were spelled out.
The charges to preach and teach were presented clearly and forcefully in the
pastoral epistles (1 Tim 4; 2 Tim 4).
The sacramental life (as we now call it) of the communities was
delineated. Baptism with water was necessary for incorporation in Christ (Mt
28: 19; Jn 3:5; Acts 2:38; 1 Pet 3:20). The discipline for celebrating the
Lord’s Supper was given in detail, along with instances of abuses which
occurred (1 Cor 11). The powers of binding and loosing from sins were
announced (Mt 18:18; Jn 20:23). The procedure for praying over and
anointing the sick was described (Jas 5:13). Mention was made of the laying
on of hands, evidently an early form of installation in office or commissioning
for ministry (1 Tim 4:14). Regulations for marrying “in the Lord,” the
conduct of married life, and the prohibition of divorce were enunciated with
unusual specificity (Eph 5:21-33; Mt 5:31; Mt 19:3,9; Lk 16:18).
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An explicit process for the resolution of disputes or offenses within the
community was given in Matthew’s gospel (18:15). Indeed, chapter 18 of
Matthew’s gospel has been called “Jesus’ sermon on church order and life.”
Much of it is directed to those who act with authority in the church and have
pastoral responsibility. Examples of excommunication, or at least
“corrective quarantine,” for offenders are also mentioned, showing that a
rudimentary system of sanctions was in place (Mt. 18:17; 1 Cor. 5:1-5).
One must not conclude too much from these examples. There was
great variety among the New Testament churches. Diversity was the
standard, not the exception. Titles, offices, functions, all varied greatly.
There was no sense of uniform regulations or coordinated government for
the churches. But there was, clearly present, at least the beginnings of
church order and discipline. The earliest churches had begun to come to
grips with routine, authority, succession and conflict.

C. Canonical Sources, Forms and Distinction

Sources

What are the sources of the rules, which make up the church’s legal
system? Where did those who compiled the various collections find the
canons they included? This list summarized the most common sources for
the canons:

1. The Sacred Scriptures. Both New and Old Testament authors were
cited as the highest authorities in matters of church discipline.
2. Natural Law. Those structures or values, which are considered to be
of the very essence of things, e.g., monogamy in marriage, truth in
speech, were and are often called upon as bases for rules.
3. Custom. Long-standing practices within the earliest church
communities, e.g. Sunday observance, the celebration of Easter,
were taken to be normative. Custom is still a source of norms.
4. Councils. The periodic gatherings of the leaders of local churches,
called synods or councils, often deliberated and settled matters of
discipline, e.g. rebaptism or reordination. Ecumenical councils, like
the Second Vatican Council, area major source of ecclesiastical
regulations.
5. Fathers of the Church. The writings of many authors in the early
centuries were revered and taken to be authoritative, e.g. Didache,
Irenaeus, Cyprian, Basil, Constitutiones Apostolorum, John
Chrysostom, Ambrose, Jerome, Augustine.
6. Popes. The letters and responses sent by the Bishop of Rome were
received with special respect and gradually evolved (in the early
fifth century) into decretals with the force of general regulations.
7. Bishops. When leading bishops made pastoral judgments or rules
for their dioceses, they were often imitated and applied elsewhere.
8. Rules of Religious Orders. The constitutions or rules evolved within
religious communities, e.g. Benedictines, Franciscans, Dominicans,
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influenced other religious groups and, eventually, the general rules
of the church.
9. Civil Law. The enactments of the Roman emperors and of later
kings and legislatures on matters which affect religion have often
been accepted as authoritative by the church.
10. Concordats. Formal international agreements between the Holy
See and national governments are a modern source for canonical
regulations.

Canon law is a complex tapestry woven from these diverse strands and
threads.

Literary Forms

Strange as it might seem, canon law and the Code of Canon Law in
particular, contain different literary forms. Not everything in the canons is
law, not everything is statutory. It is necessary, from the very outset, to be
attentive to the literary form which one encounters in the canons, just as it
is, for example in the sacred scriptures. The Old and New Testaments
include many different literary forms, e.g., poetry, letter, history, parable
sermon, apocalyptic, prophecy, proverb. In order to understand the writing,
one must first ask what kind of writing it is. It is the same in canon law.
Although the canons look very much alike, they contain several different
kinds of writing. It is important to recognize the literary form before trying to
interpret the meaning of the canon.
Doctrinal Statements. Often canons are statements of the
teachings of the church, rather than rules of behavior. Sometimes the
formulations of doctrine are expressions of the church’s faith, parts of its
creed, e.g. the description of the sacraments of Baptism, Eucharist and
Penance (cc. 849, 897, 959). At other times the doctrinal canon are
theological opinions or moral values, e.g., the purposes of marriage (c.
1055), the nature of the evangelical counsels (c. 575) or of the
contemplative life (c. 674). Occasionally, they declare philosophical theories,
like the canons are doctrinal statements, intended to give the background or
context for rules of action, but containing no sense of legal precept
themselves.

Norms of Action. Within this broad category, there are diverse

forms:
1. Exhortations. Schools should be valued (c. 796), the faithful should
join approved associations (c. 298), clerics should give superfluous
income to charity (c. 282).
2. Admonitions. Use discretion in the use of the media (c. 666), refrain
from everything alien to the clerical state (c. 285), avoid dangerous
companions (c. 277).
3. Directives. Maintain communion (c. 210), show pastoral care for
your people (c. 383), see that the word of God is proclaimed (c.
529).
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4. Precepts. Record the marriage (c. 1121), hear the finance council
(c. 1277), take possession of the diocese (c. 382).
5. Prohibitions. Do not damage another’s good name (c. 220), clerics
are forbidden to assume public office (c. 285), do not sell church
property without permission (c. 1291).
6. Penalties. A confessor who breaks the seal of confession is
excommunicated (c. 1388), a priest who strikes a bishop is
interdicted and suspended (c. 1370).
7. Procedures. A censure cannot be imposed unless the accused has
been warned (c. 1347), the respondent must be notified of the trial
(c. 1507).
8. Constitutional elements. Those incorporated into Christ by baptism
share his priestly, prophetic and royal offices (c. 204), the pope and
the bishops hold supreme authority in the church (cc. 331, 336)

A threshold question in canonical investigation is: What kind of writing

is this? Before one attempts to discern the meaning and possible obligation
of a passage or a canon, its literary form must be clarified. That guides all
further understanding.

Distinctions

1. Universal, Particular. Canon law is divided into universal or general

or common norms as opposed to particular or proper or special
norms depending on whether they apply to the whole Latin Church,
in all parts of the world, or just to some part of it. Particular laws
are those which apply only to a determined area or group of people,
like the church in one nation or one diocese. Proper law usually
refers to the constitutions and other rules of a religious community,
its own norms. Special law is that which governs a process, like the
election of the pope, the canonization of a saint, the operations of
an office of the Roman Curia, or a particular kind of judicial trial.
2. Prescriptive, Penal. Canons are prescriptive, either preceptive or
prohibitive, if the command those subject to them to do or refrain
from doing something. They are penal if they attaché a specific or
generic penalty to the violation of the canon.
3. Divine, Human. Canons are said to embody divine law if they are
drawn directly from God’s revelation or from the natural law, God’s
creation. The vast majority of canons are human law (“merely
ecclesiastical law,” c. 11) that is, enactments of the church’s own
authority and, consequently, alterable.
4. Invalid, Illicit. Some rules are invalidating, which means that actions
placed in violation of them are null and void, of no juridic effect.
Some are incapacitating, meaning that the person is juridically
unable to place the action, and the attempt brings the same result,
a nullity. Such radical limitations must be expressly stated (c. 10).
The violation of most prescriptive canons results in an illicit action,
one that is unlawful, but still valid and effective.
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5. Constitutive. Some canons are constitutive, that is they define the
very essence of a juridical institute or act, e.g. people for a parish
(c. 515), water for baptism (c. 849), consecration for a bishop (c.
375). These cannot be dispensed from, because to do so would be
to change the nature of the thing. (c. 86)
6. Normalcy, Emergency. Most non-constitutive canons are intended
to oblige “most of the time”, that is, in the common contingency, in
ordinary circumstances. They may not oblige in emergencies or in
extreme situation, depending on their seriousness.
7. Substantive Observance. Some canons admit of substantial rather
than complete and total observance, meaning that occasional non-
observance does not constitute a violation. For example, those who
regularly and habitually pray the liturgy of the hours (c. 276,§2,3º),
abstain from meat on Fridays (c. 1251), and participate in mass and
refrain from work on Sundays and holy days (c. 1247), may
occasionally excuse themselves from the observance of these rules
for a good reason without violating the general obligation.
8. External, Internal Forum. Almost all canonical matters pertain to
the external forum, that is, the arena of the church’s public
governance wherein the power of governance is normally exercised
(c. 130). There also exists the internal forum or the forum of
conscience also called the forum Dei, the forum of God, because it
is the arena of one’s personal relationship, graced or sinful, with
God. Sacramental confession and absolution pertain to the internal
forum, and therefore are surrounded with the strictest secrecy (cc.
993,94,1388). In rare instances the power of governance is
exercised in the internal forum (cc. 1079,1080,1357).
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Chapter II
History

Through the centuries, the law of the Church has been forged by
means of legislative acts and decisions of Church authority (popes, councils,
bishops, synods, judicial decisions). Law has also been established by means
of the customs that express the sense of justice of the Christian people, and
by the teachings of the jurists.
Four periods can be distinguished in the history of canon law, each
with its own characteristics: the first millennium, the classical period (1140-
1325), the modern era, which extends up to Vatican I and the contemporary
period. The last is defined above all by the codification of canon law, and by
the Second Vatican Council, whose juridical directives have been received
into the canonical legislation now in force, especially in the two Codes that
currently govern the Latin Church and the Eastern Churches.

A. First Millennium

1. The Post Apostolic and Early Church

After the New Testament Period, local churches were scattered all
around the Mediterranean basin. There was mutual recognition and some
communication between them, but there was no central authority or single
rule-making power. Yet some of the earliest records we have about the life
of these churches are canonical.
The Didache or Teaching of the Twelve Apostles, an anonymous
collection of moral, liturgical, and disciplinary instructions, is one of the first
and most precious post-apostolic writings. It was written about the year 100.
It contains clear directions on how to baptize, on keeping the Lord’s day, on
prayer, and on the election of bishops and deacons.
The Didache formed the pattern for several other small collections of
rules about the life of the church in the first two hundred years after New
Testament times; for example, the Traditio Apostolica of Hippolitus of Rome
(ca. 218), the Didascalia Apostolorum (ca. 300). They were not issued by
any formal authority. They were simply compiled customs. People wrote
down the accepted practices of their own community. Then they were
circulated and accepted by other communities.
The Earliest form of Church discipline was the recorded customs of the
believing communities. They told of the ways that sacraments were
celebrated, leaders elected and sinners reconciled. They also reflect the
conflicts and disputes which troubled the local churches, e.g. whether to
rebaptize those who had fallen into heresy and then returned.
The writings of the apostolic Fathers and apologists of this same period
confirm and bear witness to these early church practices; for example, the
letters of Clement of Rome, Ignatius of Antioch, and Polycarp of Smyrna.
The most significant development of this early period for canon law,
however, is the synodal or conciliar process. It was patterned after the
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example of the Council of Jerusalem depicted in Acts 15. The leaders of the
local churches of an area would come together, either regularly or as need
arose, to deliberate and seek consensus on matters of doctrine and
discipline. This practice was common and well accepted from at least the
early third century.
Local councils were held in North Africa, Spain, Italy, France, and Asia
Minor. The disciplinary decisions of these local councils were frequently
communicated to other churches when they gathered in council. It was a
lateral process of mutual acceptance and common usage.
In the fourth century this conciliar process expanded to what we now
call “ecumenical councils,” that is, gatherings representative of the entire
communion. (The term ecumenical comes from the Greek oikoumene, the
inhabited world, the universe.) The first of these “universal” councils, called
by the Roman Emperor Constantine, met in Nicea (in present day, Turkey,
not far from Istanbul) in the year 325. It was attended by about 318 bishops.
It is known chiefly for its debate about the nature of Christ. The council gave
us the Nicene Creed, which we still use in Eucharistic celebrations today. But
the bishops of the council also debated, agreed upon, and issued twenty
“canons”, that is various rules of discipline. And such was the authority and
prestige of the council that those canons were widely circulated and
accepted throughout the churches which made up the communion.
The canons of Nicea dealt with a range of topics which apparently
represented abuses or disputes at the time; for example: self-mutilation,
clerical chastity, ordination of bishops, mutual recognition of
excommunications, reconciliation of those who denied their faith, clerical
stability or non-transferability, clerical usury, distribution of holy communion,
and the appropriate posture for prayer.
In this early period, the Church was relatively free to develop its own
regulative structures. It was a minority religious group, widely established in
the urban centers of the Roman Empire. Before Constantine, the Church was
either ignored or persecuted by the government. It retained the offices and
practices first used in the New Testament period, those derived from Jewish
tradition (e.g. the conciliar process) or the Greek context (e.g., offices like
episkopos, overseer, bishop, and presbyteros, elder, presbyter). However,
the Church’s world was organized by the law of the Roman Empire, and,
naturally enough, when the church needed new structures, it often borrowed
from that source (e.g. “diocese” and “province” were terms directly taken
over from the subdivisions of the empire).
Perhaps the most important thing to remember about these first
centuries of the Church’s rule-making life is that its earliest modes were
customary and conciliar.
2. The Church of the Empire

Early in the fourth century, the Church was recognized by the Roman
emperor, Constantine, and was granted not only freedom but also a position
of preference and privilege. Gradually it became the established religion.
But its relationship with the imperial authority was not worked out
satisfactorily until later. Throughout the middle of that century, successive
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emperors sought to dominate the Church, to favor heretical factions within it,
and even to persecute members of the Church.
In the late years of the fourth century, Bishop Ambrose of Milan and
Emperor Theodosius I worked out a relatively balanced alliance: a positive,
close and collaborative relationship in which both authorities, church and
state, recognized each other as supreme in their own realms. The Church
respected and supported imperial authority and policies, and the state
honored the Church’s authority in matters of faith, the discipline of the
clergy, liturgy and the administration of church property. The empire
supported the social and charitable works of the church, exempted the
clergy from taxes and military service, and even make the bishops
administrators of the state’s justice. The Church had become the Church of
the Empire.
In this new status the church could not help being strongly influenced
by Roman law. It borrowed freely from the well-developed legal structures
and procedures of the empire. In fact, the church was compelled to adopt
the elements of Roman law because the Christian emperors, especially the
great legal compilers of the fifth and sixth centuries, Theodosius II and
Justinian I, legislated for the Church. They included large sections of
ecclesiastical rules, many for their own making, in the collections of laws
promulgated for the empire (e.g., the Codex Theodosianus of 438, and the
Corpus Iuris, 535). It would be difficult to exaggerate the influence of Roman
law on the Church’s regulatory system, at this period and permanently
thereafter.
Two demographic factors affected the development of the Church’s
organization and ministry at this time; namely, its huge numerical growth
and its spread into the countryside. It became socially and politically
advantageous to be a Christian, and many desired to join the Church. The
result was a vast increase in membership, but a decrease in the levels of
preparation and commitment. This newer population extended the Church
outside its traditional urban areas into rural towns and villages. This caused
the bishops of the cities to depute presbyters to lead the outlying
communities. Congregations of the faithful were dispersed and multiplied,
but the bishop gradually lost all personal relationship with the members of
the local churches.
The gradual evolution of the Bishop of Rome into a figure of central
authority is another key factor in the development of canon law. Because of
its connections with the apostles Peter and Paul, and because of its
importance as the imperial capital, Rome had significance as an
ecclesiastical reference point as early as the third century. During the
tumultuous changes of the fourth century the Bishop of Rome grew in
stature and influence.
In the West, bishops referred questions to Rome, and they received
answers which were translated as authoritative. By the time Leo I (440-461),
the Bishop of Rome was recognized as the Patriarch of the West with an
undisputed primacy. This unique leadership role was not yet acknowledged
in the East. Leo articulated the theory that the Bishop of Rome is the heir of
Peter. Christ is the true and eternal bishop of all his people, but he granted
 13
Peter an enduring share in his Episcopal power, and each successive Bishop
of Rome inherits it.
The bishops of Rome, referred to as Popes, began to issue perceptive
letters or decretals (decretals, decrees) with some frequency during the fifth
century. These letters were seen to have broad authority, even though they
were addressed to one bishop or one region. The decretal letters, therefore,
are the first manifestation of papal legislative power. They began to be
collected and placed alongside the earlier customary and conciliar
regulations for the life of the Church.
The two most important canonical collections of the early centuries
are:
1) The Syntagma Canonum Antiochenum (the collection of conciliar
canons made at Antioch), probably begun in the late fourth century
and completed in the late fifth. This collection, with its later
additions, is the central basis for Oriental Church law.
2) the Dionysiana, a collection of conciliar canons and papal decretals
made at Rome by a monk named Dionysius Exiguus (Dennis the
Little) at the outset of the sixth century. This compilation, in its
various subsequent editions, had an immense influence on all
medieval canon law.

A final example will illustrate the relationship of Church to empire and

the effective use of canonical collection. In the year 751, long after the
decimation of the Roman Empire by the invading tribes from the North,
Pepin, the de facto ruler of the Frankish kingdom, was given the title of King
of the Franks by the pope. Pepin and his son, Charlemagne (768-814), set
about the work of consolidating the kingdom, and they knew that the
restoration of Church discipline was an integral part of that task. They also
assumed that church renewal was their responsibility as Christian monarchs.
In 774, Pope Adrian I gave to Charlemagne a revised version of the
Dionysiana collection of canons (called the Dionysiana-Hadriana), which the
vigorous Christian king did his best to enforce throughout the kingdom. He
convened reform councils in various parts of Europe to restore good order to
the Church. He appointed reform-minded metropolitans and bishops, and
they brought themessage home to their diocesan synods. On Christmas Day
in the year 800, Pope Leo III crowned Charlemagne the Holy Roman Emperor.
It should be noted that the growth and territorial organization of the
Church, together with the influence of Roman Law, contributed greatly to
centralization and monarchical (from monos archein, to rule alone) rule
within the Church, with a simultaneous diminution of local congregational
autonomy and participatory governance. The groundwork was laid for the
sole authority of the bishop in each diocese, the metropolitan in the
province, and the Roman Pontiff in the entire Church.

3. The Church and Feudalism

The peoples of Northern Europe who overran the crumbling Roman

Empire had a profound effect on the Church’s regulatory system. These
14
changes took place over a long period of time, however, not as a result of
the invasions. They emerged in what we now describe as the feudal period
(roughly mid-ninth century until early thirteenth), and they are related to
some basic legal concepts developed among these peoples. The tribes had
become quite settled, and also quite Christian.
Their system of laws was customary, more dependent on the oral
traditions of how things were done than on laws written down in collections.
It was closely entwined with the life and livelihood of the people, rather than
inherited from the distant past. And it was tied to the land on which and
from which they lived.
The feudal system was based on the concepts of vassalage (a personal
promise of loyal service in return for protection and recompense), fealty (an
oath of fidelity), and benefice (beneficium, income for the performance of a
specified task). These and other features of feudal law impinged on the life
of the Church. For instance, the local lord gave priests the revenue from
certain lands in exchange for the performance of their parochial duties. The
pastorate became a benefice, an office tied to a source of income. And the
lord, owner and protector of the land, dispensed the pastoral offices to
whomever he wished, often without regard for the priest’s qualifications or
the spiritual welfare of the people.
The same was true of bishoprics and monasteries. Greater nobles and
kings used these offices and the lands of the Church to consolidate their
power and income. The clergy promised faithful service to the secular rulers.
Many other elements of this tradition found their way into the Church’s
discipline; e.g., the extensive use of oaths in judicial proceedings, stipends
and stole fees on the occasion of sacramental ministries, personal penances
replaced by offerings of money or performed by a substitute, etc. There
were also certain participative procedures which were encouraged; e.g., the
collegial forms of self-governance in religious orders, chapters of canons,
confraternities, and lay associations.
Eventually the “privatization” of the Church’s public offices led to the
great Church-State conflict known as the “lay investiture controversy” of the
late eleventh century. A restored papacy faced determined German kings in
a struggle to regain control of ecclesiastical offices. The practice had been
for the lords (lay persons) to install their chosen bishops and abbots in their
offices by investing them with the symbols of office (pastoral staff and ring).
Pope Gregory VII in 1075 decreed:
“…that no one of the clergy shall receive the investiture with a
bishopric or abbey or church from the hand of an emperor or king
or of any lay person, male or female. But if he shall do so he shall
clearly know that such investiture is bereft of apostolic authority,
and that he himself shall lie under excommunication until fitting
satisfaction shall have been rendered.”

The matter was not ended with a decree, for the practice of investiture
was deeply embedded in the structure of feudal society. But after nearly
fifty years of conflict, theological and political as well as military, the issue
was fairly concluded with a compromise (at the Synod of Worms in 1122):
 15
bishops would be canonically elected and lay lords would not longer invest
them with ring and staff, but they could be present for the elections and
receive the homage of newly elected prelates for the feudal lands of their
churches. Hence, the secular ruler still could exercise an effective veto over
a candidate unacceptable to him. It was probably the best solution possible
in the context of the times.
These were not transitory episodes in the medieval life of the Church.
Strong influences of Germanic law remain in the canonical tradition.
Parishes were considered to be benefices and the ius patronatus (right of the
patron to name the pastor) continued until the middle of the twentieth
century. Mass stipends and oaths of fidelity and veracity are with us still.
The gesture in the ordination ceremony of placing one’s folded hands within
those of the ordaining bishop while promising reverence and obedience is a
replica of the feudal act of vassal homage. (It is a symbolic expression of the
obligations of reverence and obedience of c. 273.) And the participative
practices, e.g., election of leaders, deliberations in chapters within religious
communities and lay associations also endure.
The review of the period should not conclude without mention of five
significant canonical collections:
1. in the East, the Nomocanon (from the Greek nomos, law, and
kanon, rule), compilations which combined the civil laws of the
empire and the canons of the church councils, edited in the ninth
century and revised in the eleventh;
2. the Collectio Dachariana, a lasting product of the Carolingian
Reform, compiled in the middle of the ninth century (and named
after its seventh-century French publisher)
3. the Decretum of Bishop Burchard of Worms, a collection completed
in 1012 which was widely used in schools and church offices;
4. three collections , Tripartita, Decretum, and Panormia, completed in
1094, by Bishop Ivo of Chartres, works influential in the debates of
the Gregorian Reform;
5. the Pseudo-Isidorian Decretals, of unknown mid-ninth century
authorship, attributed to the seventh-century Bishop Isidore of
Seville, and containing fictitious decrees of several early popes; an
influential collection of false documents, whose falsity was not
discovered until the fifteenth century.

Here it is a sad necessity to note that, owing to the tragic events of

1054 which broke the bonds of unity between Eastern and Western
Christianity, the two canonical traditions further diverge and cease to
interact.

B. Classical Canon Law

Toward the middle of the twelfth century, the classical period began, in
which canon law received a systematic and scientific, or scholarly
development encouraged in part by the Roman Pontiffs and realized by the
masters of the first universities. The fruit of this was the Corpus Iuris
16
Canonici, which constitutes the principal written source of the law of the
Church until the first Code of Canon Law (1917).

Three factors coalesced to make this period, from the mid-twelfth to

the mid-fourteenth centuries, the “classical epoch” of canon law, a time or
critical development and great influence: 1) a new and unparalleled
collection of canons, 2) the systematic study of this new science in major
educational centers, and 3) its mutually reinforcing relationship with a very
strong papacy.

1) At the University of Bologna in the early twelfth century there

occurred a major revival of interest in and study of Roman law. In that
context, a Camaldose monk, John Gratian, who taught in one of the faculties,
compiled a collection of canons which he called Concordantia Discordantium
Canonum (A Harmony of Discordant Canons). He completed the work about
1140. It became more commonly known as the Decretum Gratiani (Gratian’s
Decree), but it was a scholarly compilation, not a decree. Gratian’s work
surpassed and superseded all preceding canonical collections because it was
more comprehensive, better organized, and because he applied to this mass
of canonical literature a systematic process of scholastic analysis. Gratian
analyzed the meaning of the terms used in the canons, examined the
sources for the canons, and determined which canons had greater authority.
When rules on the same issue diverged or were contradictory, he worked out
a reconciliation (or harmony) of the canons by means of these principles of
comparison and preference.
2) Gratian’s Decree quickly became the one book used in all of the
universities where canon law was studied, and their number multiplied in the
decades following its publication; e.g., at Paris, Oxford, Salamanca,
Montpellier, Padua. Teachers lectured on it, students studied it, and authors
commented on it. (Those earliest commentators are called “decretists.”) It
was the unifying point of departure for a whole new field of study. More
gradually it also became the standard reference work for those in papal and
Episcopal offices.
3) In this same period the papacy was establishing itself in Europe as a
centralized and dominant power, both spiritually and temporally. The newly
organized system of canon law assisted this growth and, in turn, the popes,
now claiming wider legislative, judicial, and administrative powers, issued
more rules and decisions which further expanded the canons. The leading
popes of this period were all canonists: Alexander III (1159-81 who had been
a student of Gratian), Innocent III (1198-1216), Innocent IV (1243-54), and
Boniface VIII (1294-1303). In their frequent negotiations with the kings of
Europe as well as in their daily governance of the Church, these strong men
relied heavily on the canonical system.
At the apogee of papally asserted “fullness of power” (plenitudo
potestatis) Boniface VIII stated that the spiritual authority of the church
leaders could both instruct and sit in judgment upon those rulers. The
highest spiritual powers could be judged by God alone. He concluded:
 17
“Therefore we declare, state, define and pronounce that it is
altogether necessary to salvation for every human creature to be
subject to the Roman Pontiff.” (The Bull Unam Sanctam, 1302)

Papal decrees were not the only source of canons during this period.
Four ecumenical councils were held during this time (two in Rome, Lateran III
in 1179, IV in 1215, and two in Lyons, in 1245 and 1274), and each of these
issued its own canonical regulations.
Popes and bishops used the newly developed canonical craft to
undergird their authority and actions, but they also advanced the canonical
science. Gregory IX (1227-41) ordered a Dominican scholar, Raymond of
Peñafort, to compile all of the decrees and conciliar canons issued since
Gratian’s collection (as well as some materials Gratian had omitted).
Gregory issued this collection of decretals (which became known as the
Decretales Gregorii IX) in 1234. And for the first time it was promulgated as
an authentic, official and exclusive source of rules for the whole church. All
previous canonical collections had been essentially private and unofficial.
(The commentators on Gregory’s decretals are known as “decretalists”)
Decretal and conciliar legislation continued, and subsequent popes
issued similar, well-ordered collections of canons. The quality of the
scholarship surrounding this growing body of canons was exemplary. The
canonical commentators and teachers were among the finest minds of the
time. Three stand out:
1. Huguccio (Hugh of Pisa) taught at Bologna and was later Bishop of
Ferrara; his Summa (about 1190) was among the finest works of the
decretalists.
2. Hostiensis (Henry of Susa), taught at Paris and later became
Cardinal-Bishop of Ostia; his Summa (1253) and Lectura (about
1270) placed him at the head of the decretalists.
3. Joannes Andreae (Joan of Andrea), a layman and distinguished
professor at Bologna, wrote two glossa ordinaria (commentaries,
1301 and 1322), and surveyed the whole of decretalist literature in
his Novella Commentaria (1338).

Those which combined with the Decretum of Gratian to form the

Corpus Iuris Canonici include: Decretals of Gregory IX (1234), also called the
Liber Extra, which is a compilation in five books made by St. Raymund of
Peñafort; Liber Sextus (1298) promulgated by Bonface VIII to complement
the Decretals; and the Clementinae, a collection begun under Clement V, but
promulgated by John XXII in 1317.
Two other important canonical developments of this period should be
mentioned. First, the mendicant religious orders (e.g., Franciscans,
Dominicans, Carmelites, Servites), which were founded and flourished at this
time, developed enduring constitutions and statutes which enabled them,
under papal protection, to launch splendid apostolic initiatives and remain in
control of their own destinies. Parallel to them and often related were the
foundations and activities of Third Orders, confraternities and other lay
18
organizations, which sponsored vast charitable and educational
undertakings, supported by participative canonical structures.
Second, Roman law once again had a profound effect on canon law.
The two systems were studied side by side. Many canonists also earned
degrees in Roman law. The principles of interpretation were parallel. And
the canonical system recognized Roman law as supplementary, i.e., when
there was no canon to cover a certain matter, it was appropriate to harken to
Roman law. (Throughout this and the following period the word “laws”
referred to Roman laws, while “canons” referred to rules enacted by church
authorities.)

C. Modern Era

In the beginning of the sixteenth century, the general situation of the

Catholic Church had reached a low point that a total reform proved to be
inevitable. The Council of Trent (1545-1563) did not confine itself to
doctrinal decrees alone, but promulgated disciplinary rules also. This caused
a true reform of the Church.
During this period, the Corpus continued to be the central nucleus of
the current law. Other collections of norms and doctrinal commentaries
were added to it, developing and adapting it to the new circumstances.
Among these enlargements there should be included first of all the
decrees of the Council of Trent (1545-1563), which initiated a profound
reform of the ecclesiastical discipline. In addition, the acts of the Pontiffs
were gathered in chronological series called bullaria, to which were joined
the ever more numerous dispositions and decisions of the dicasteries of the
Roman Curia, organized by Sixtus V in 1588. Among these collections can be
mentioned the Decisions of the Sacred Tribunal of the Roman Rota and the
Resolutions of the Sacred Congregation of the Council.
Also during this period, the church truly struggled to find its place in
the world of enlightened rationalism, absolutist monarchies, the French
Revolution and the new liberalism, and the modern secular state. The
papacy negotiated endlessly with kings and generals and presidents in order
to defend and promote the interests of the Church, but the presuppositions
of a commonly shared Christendom were long gone. The emerging
governments wanted either to be entirely separate from churches or to
manipulate them for their own purposes.
The Roman Catholic Church no longer held the kind of power, wealth
and privilege which it once possessed. In the late nineteenth century it even
lost the papal states (central Italy). The popes, bishops and people fought
hard, in the context of modern state regimes, for enough freedom and
leverage for the church to continue its work of witness and worship. They
suffered heavy losses in the process, e.g., the exile, imprisonment or death
of thousands of priests and nuns, the suppression of religious communities,
and the confiscation of vast amounts of Church property. It was a
tumultuous time of radical political and cultural changes.
One set of canonical issues was closely entwined with this ongoing
church-state struggle. Its most common label is the debate between the
 19
Ultramontanists (those fostering a strong, centralized papal government for
the church) and the Gallicans and Febronians (those arguing for the rights
and freedoms of the churches of France and Germany, respectively, and for
Episcopal authority). Gallicanism began earlier, and had roots in the
conciliarism of the reform councils of Constance and Basel. It was tinted with
the bright shades of French nationalism.
Febronianism (after the pseudonym used by Bishop Johann Nikolaus
von Hontheim when he wrote De statu ecclesiae et legitima potestate
Romani Pontificis in 1763) was the outgrowth of a very respectable canonical
tradition. Zeger-Bernad van Espen, Kaspar Barthel and Christoph Neller
were three of its major authors and teachers. They hearkened back to the
early church, before the exaggerated papal claims of the Pseudo-Isidorian
Decrees and the Gregorian Reform, and asked for a return to its constitution,
one in which bishops were recognized as the successors of the apostles.
Bishops hold authority by divine right, and were not vicars or delegates of
the pope. Gathered together with the pope in general council, the bishops
were the true representatives of the body of the Church. The pope was
rather the center of unity, but not Universal Bishop with unfettered
jurisdiction.
The canonists of the Roman curia and others (Jesuits in the forefront),
countered these theories, and strongly asserted the prerogatives of the
Petrine office and warned of the dangers of national churches. Eventually
the Ultramontanists won out, not so much by force of canonical and
theological argument, but as a result of many other factors, e.g., the
practical realization that national churches were no match for strong
governments, and that a sovereign papacy was a great advantage, the
popular appeal of the papal office, and effective diplomatic negotiations with
national leaders (like the concordat with Napoleon in 1801). The First
Vatican Council in 1870, with its formal declaration of papal supremacy
(Pastor aeternus), effectively ended the debate.
Apart from the heated Gallican-Febronian controversy, the canonical
waters of this period were relatively calm, nearly stagnant. There was no
conciliar legislation because no other general councils were held; the First
Vatican was the only one held since Trent, more than three centuries earlier.
Papal decrees continued to be issued on various matters of discipline. The
many concordats between the Holy See and civil governments added
canonical regulations applicable in nations affected. For example, the
concordat with Napoleon allowed the French ruler to name bishops, but
assured that the state would pay the salaries of the clergy in compensation
for confiscated church property. This pact was the prototype for several
subsequent agreements in the nineteenth century.
Canon law had become formalistic and repetitive. Its study in
seminaries and religious houses of studies was shallow and ahistorical. In
important areas (e.g., sacraments, penalties clerical obligations) its teaching
was combined with that of moral theology, and neither discipline benefited
from the marriage. Manuals of canon law multiplied, and were largely
duplications of one another. Authors settled disputed issues by counting the
authorities on both sides, rather than by intrinsic arguments.
20

The papacy had come a long way from the humiliating imprisonment of
Pius VII by Napoleon (1809-14) to the relatively exalted situation of Pius X
(1903-14). The popes of the Catholic restoration had succeeded in gaining
respect and authority for a renewed papal office. They never changed their
defensive posture or shed their siege mentality in relationship to the modern
world, but they managed to centralize and concentrate their authority within
the church as well as their respect outside it.
Pius X was one of the great reform popes, but his mode of reform was
conservative, restorationist, and “from the top down.” No sooner was he
elected than he began the reorganization of canon law.
Bishops and canonists for decades had sought a new collection of
canons. The last official collection was that of John XXII in 1317. Little was
added when the Corpus Iuris Canonici was put together in 1500 and again in
1852. The Liber Septimus, attempted after the Council of Trent, was never
issued. The sheer number of extant laws was vast; they had grown like
mushrooms in the ensuing centuries. They were not systematically
arranged; often they were listed in chronological order. Some of the
documents in the collections were not laws at all, some were contradictory,
some had been abrogated or fallen into desuetude, many were written in a
diffuse and obscure prose. The canons had grown into a large thicket in
which living and dead branches intertwined, making passage exceedingly
difficult even for the skilled canonist. In preparation for the First Vatican
Council, a group of French bishops had written Rome: “We are drowning in
laws.”
In March 1904, Pius X set in motion the “truly difficult task” of
“collecting the laws of the universal Church, in a clear and concise order, and
adapting them to the conditions of our time.” To direct the effort, he chose a
curial canonist who had taught at the University of Paris, Pietro Gasparri
(1852-1934), a man of extraordinary talent, energy and persistence.
Gasparri worked with commissions of consultors for ten years at the
prodigious task of organizing, sifting and reformulating the canons. It was
more a work of legal drafting than legislating. Although the work was carried
on in secret, it began and ended with a consultation of all the bishops and
Catholic universities of the world.
A key decision made at the outset, was the choice to make a code
rather than a collection. All previous compilations of canons had been in the
form of collections of documents; the original words, pastoral situation, date,
and issuing authority were retained. The canonical rule remained in its
historical context. Codification is an exercise in conceptual juridical
abstraction. It strives to reduce the rules to terse and abstract formulations,
and arrange them in a carefully constructed system. It is strong on clarity,
brevity, consistency, and order, but the rules are entirely set apart from the
social and historical context which gave rise to them.
Codification was in vogue in Europe in the nineteenth century.
Napoleon used the code style in 1804 to erase the memory of the ancien
regime in France. Germany, Switzerland, and Italy were using the
codification process. Gasparri and his co-workers admired it and adopted it.
 21
The reformulation of the canons and the final consultation were
completed by the end of 1914, but Pius X had died and World War I broke
out, so it was decided to wait until Pentecost, 1917, to promulgate the first
Code of Canon law. Pope Benedict XV, with that single legislative act “made
it all his own,” and swept aside all previous canonical enactments. The Code
actually took effect one year later, Pentecost, 1918; a year’s vacatio legis
was given for the church to get used to its new set of rules.
The new code was hailed as a great success. It was handy, well-
ordered and accessible (just 2,414 canons), and canonists took to it with
relish. They promptly began to prepare commentaries on it and restructured
their courses in accord with it.
The Code furthered the centralization of authority at both papal and
Episcopal levels, and reinforced an extreme uniformity of practice in the
Church. But is also brought relative order out of the chaotic state of canon
law at the beginning of the twentieth century. The promulgation of the Code
marked the opening of a new canonical epoch.
In the following decades the Code served as a book of answers,
sometimes even as a catechism. It began to get “out of date” in a fast
changing world. Many changes were made in the rules, but they were not
inserted into the Code. Once again, the rules outside the rulebook began to
outnumber those within it. More basically, the pastoral restructuring needed
for effective ministry in the modern world was not forthcoming. But
canonists didn’t notice. It took the visionary Pope John XXIII to see that the
canons needed aggiornamento (updating).

D. Contemporary

The Code of 1917 theoretically remained in force until the

promulgation of the Code of 1983, but already before that time many of its
precepts were considered to have been modified by the Second Vatican
Council.

1. Vatican II Foundations

The Council was convoked by John XXIII on January 25, 1959. On the
same occasion, the pope announced the reform of the Code of Canon Law.
The conciliar sessions took place between October 1962 and December
1965. Soon it was apparent that it was necessary to await the results of the
Council in order to be able to prepare the reform of the canonical legislation.
A simple updating of the Code then in force would not be sufficient.
The conciliar teaching, in effect, constitutes the principal source of
inspiration for the current Code promulgated by John Paul II on January 25,
1983.
The Second Vatican Council dealt with a great variety of themes, but it
can be said that at the center of its reflection, there stands the mystery of
the Church. In this perspective, fundamental aspects were brought out
regarding the constitution and mission of the Church, which formerly
22
remained latent or were considered to be secondary. The Council itself took
care to indicate the most important practical consequences of this deepened
reflection, whose full application to ecclesial life has marked the period after
the Council. For that which regards canon law, the fundamental guidelines
can be summarized as follows:
1. The consideration of the Church as People of God in which all
the members share the same dignity and responsibility of
children of God and the same vocation to sanctity. This
understanding requires an underlying juridical status common to
all the faithful, in which their rights and duties, their initiatives
and contributions to the building up of the Church, are defined
and guaranteed;
2. The reflection on the College of Bishops as a subject of the
supreme power of the Church alongside the Roman Pontiff, the
Supreme Pastor and Head of the College. This brought about a
search for new modes of exercise of collegiality with
corresponding juridical consequences;
3. The teaching on the sacramentality of the episcopate and the
ministry of bishops, which implied a clarification of the various
paths and modalities of participation in ecclesiastical power.
This teaching has emphasized the nature and role of the
particular Church in the building up of the universal Church, and
has led to a greater autonomy of the diocesan bishop in his
pastoral task;
4. The conciliar study of the Church as a priestly community – in
which every member of the faithful already participates through
the priesthood of Christ by virtue of baptism – whose organic
structure is realized on the basis of the sacraments, the virtues
and the charisms, calls for a canon law that is built on these
foundations. Canon law, therefore, is to establish the
relationships between hierarchical and personal charisms, so
that both cooperate for the good of the entire ecclesial body;
5. The affirmation of the role that belongs to the laity in the
mission of the Church, principally with regard to their apostolic
initiatives in the midst of civil society, which demands an
adequate pastoral organization capable of maintaining and
guiding Christian life immersed in secular realities;
6. The teaching of the Council on the relationship between the
Church and civil society affirms a reciprocal independence
between Church and state and centers their relationship on the
dignity of the person and on the defense of his fundamental
rights, especially that of religious liberty. This teaching,
furthermore, has repercussions on the relationship of the Church
with other religious communities, particularly with those that are
Christian, to whose members certain rights of partial
communion with the Catholic Church are recognized.

2. 1983 Code
 23

These ideas, among others, were taken into consideration in the phase
of development of the new canonical codification. This was a long process,
whose stages can be summarized as follows.
As we have seen, on January 25, 1959, John XXIII convoked the Council
and announced the revision of the CIC. In March 1963, shortly before dying,
he constituted the commission charged with this revision. However, it was
soon decided that it was necessary to wait for the results of the Council
before launching a profound reform of canon law. Therefore the work of the
commission really began in November 1965, a few days before the closing of
the conciliar sessions.
The commission was composed of cardinals and bishops who were
gathered to decide the most important points. The development of
successive projects was entrusted to an ample task force of consultors
divided into study groups for each subject. Paul VI indicated the objectives
and the directions to be followed.
In order to unify the criteria, the Guiding Principles for the Revision of
the CIC were developed, organized in 10 points and presented to the Synod
of Bishops of 1967 for approval. These points synthesized the guiding
principles derived from the teaching of the Council. They are presented here
in summary form:
1. The Code is to define and protect the rights and obligations of the
faithful in relation to one another and to the Church. Its norms are
to help the faithful, in the course of their Christian lives, share in
whatever assistance toward salvation the church offers them.
2. The external and internal forums should be coordinated and not
conflict with one another.
3. Pastoral care is to be fostered above all, and to that end both the
legislation and its application are to be characterized by charity,
moderation, humanity and equity as well as justice. Exhortation
and persuasion are to be preferred to an insistence on rights.
4. Bishops are to have the authority to dispense from the general law
of the Church.
5. The principle of subsidiarity is to be more effectively applied,
especially because the office of bishop is of divine law. Where
unity of discipline is not required, decentralization should prevail,
especially in the form of particular legislation and a healthy
autonomy of executive authority.
6. The rights of persons are to be defined and safeguarded, since all
the Christian faithful are fundamentally equal and their offices and
duties so diverse. Then the exercise of authority will appear more
clearly as service, and it will be more effective and free from abuse.
7. Subjective rights are to be protected by suitable procedures. The
administration of justice must be improved, and the various
functions of church authority, namely, legislative, administrative
and judicial, are to be clearly distinguished.
24
8. Portions of the People of God are to be determined territorially for
purposes of governance, but other criteria may also be used to
describe communities of the faithful.
9. Penalties are sometimes necessary, but they are to be imposed in
the external forum and after judgment; those imposed by the law
itself are to be reduced to a minimum.
10. The new Code is to be restructured to reflect its accommodation
to a new mentality and different needs.

On the basis of these principles, and taking the canons of the Code of
1917 as their starting point, the study groups developed – between 1972 and
1977 – 10 partial schemas that were to complete the new Code. The
schemas were sent to all bishops, to the dicasteries of the Roman Curia and
to the faculties of canon law so that they could present their observations
and proposals.
The many responses received were ordered and distributed to the
groups of consultors, who proceeded to develop a new project for the Code.
This is the Schema of 1980, presented to the Supreme Pontiff, who
submitted it for study to the commission, which at that point had 74
members.
The amendments and suggestions of the individual members of the
commission were discussed and weighed by the secretariat of the
commission, which in 1981 sent them a report (Relatio) giving a reasoned
opinion concerning the acceptance or rejection of each proposed
amendment.
This Relatio of 1981 was discussed in the plenary session of the
commission in October of the same year. In it, the amendments and
modifications that were to be introduced into the project of 1980 were
decided upon. The result was the Schema of 1982 presented to the Holy
Father in April.
Pope John Paul II reviewed the proposed Code twice, first with the
collaboration of a group of experts and then with three cardinals. With the
modifications introduced in these sessions, the definitive text of the Codex
Iuris Canonici was finalized and then promulgated on January 25, 1983.
The Code of Canon Law features a new and improved internal
organization, in response to principle number ten (above). In the past,
canonical collections and codes borrowed their organization design from
secular or civil law patterns, with categories derived from Roman law. For
example, the 1917 Code was divided into five sections (called “books”):
General Norms, Persons, Things, Procedures, Crimes and Punishments. By
contrast, the organization of the present Code of Canon Law is based on the
theology of the Church of the Second Vatican Council. It prominently
employs the “People of God” language and the threefold division of the
Church’s mission and ministry into teaching, sanctifying and ruling. (The
Latin word used for this threefold role is munus, which can mean service,
office, function, duty or work. “Function” seems to be the best translation
here.) This triad is another way of describing the classical messianic roles of
Christ: prophet, priest, and king.
 25
The Code of Canon Law is divided into seven sections (also called
“books”). This is a brief summary of their contents:
1. General Norms. The first book contains the building blocks for the
whole canonical system. These canons define the terms, persons,
instruments and powers which are employed in the rest of the Code
and outside it as well. These are very basic concepts, most of them
drawn from long canonical tradition and its Roman law roots.
2. The People of God. This is the central, largest and most important
part of the Code. It reveals the constitution of the church.
Members and their rights and duties are set forth first, then the
ordained ministry (the clergy), and the associations of the faithful.
The hierarchy is described: pope, college of bishops, diocese, their
officials and their groupings. Parishes, pastors, and other pastoral
roles are outlined, and religious institutes and societies apostolic life
are described.
3. The Teaching Function. The various persons responsible for
preaching, catechesis, missionary action and Catholic schools are all
set forth here. This book is mostly new and directly from the
documents of the Second Vatican Council. It closes with rules on
the prior censorship of books.
4. The Sanctifying Function. This is the second longest and most
important book of the Code. It contains the canonical discipline of
the sacraments and other acts of divine worship, as well as that for
churches, altars, cemeteries, and days of feast and fast.
5. Temporal Goods of the Church. Here, in the Code’s shortest book,
are found the rules for the acquisition, disposition and
administration of the Church’s monies, lands and buildings, as well
as the rules on wills and bequests.
6. Sanctions in the Church. Those acts, which are considered crimes
in the Church, and the appropriate punishments for them, are
outlined here.
7. Procedures. This last book treats of the judicial processes used for
trials in Church courts, as well as some specialized administrative
procedures, like those for administrative recourse or for the removal
of a pastor.

The Code consists of 1752 canons, very different in style, content,

weight and application. Together they represent the controlling center of the
Church’s whole canonical system.
26
[SUPPLEMENT]

The Structure of the 1983 Code of Canon Law

The current Code differs quite clearly from the 1917 Code in its
structure and ecclesiological perspective upon which its structure is based.
The 1917 Code was a clear juridic expression of Vatican Council I, which had
preceded its drafting, and the 1983 Code is likewise a clear juridic expression
of Vatican Council II, the Council which had immediately preceded it. In Pope
Paul the VI’s terminology, the new Code reflects the “new way of thinking”
(the novus habitus mentis) of the Council. The canons of the new Code are
organized into 7 distinct Books as follows:

I. General Norms canons 1-200

II. The People of God canons 201-746
III. The Teaching Office of the Church canons 747-833
IV. The Office of Sanctifying in the Churchcanons 834-1253
V. The Temporal Goods of the Church canons 1254-1310
VI. Sanctions in the Church canons 1311-1399
VII. Processes canons 1400-1752

The main contents and highlights of each of these Books are as

follows:

Book I – De Normis Generalibus.

This Book treats of basic juridic principles common to all the canons of
the Code, and it gives definitions and general norms applicable throughout
the law. This Book defines the limits of the Code, defines and discusses
Ecclesiastical Laws, the role and limit of Custom, General Decrees and
Instructions, Individual Administrative Acts, Statutes and Rules of Order,
Physical and Juridic Persons, Juridic Acts, the Power of Governance,
Ecclesiastical Offices, Prescription, and the Computation of Time.

Book II – De Populo Dei.

This is the longest Book of the current Code and takes its title from
Chapter 2 of the conciliar document, Lumen Gentium. It is divided into 3
major Parts: (1) the Christian Faithful (canons 204-329) – concerned with the
role of all the baptized in the Church. It contains the rights and obligations
common to all members of the Church as well as those, which pertain to the
laity and clergy specifically. It also looks at Personal Prelatures and
Associations of the Christian Faithful. (2) The Hierarchical Constitution of the
Church (canons 330-572) – concerned with the identification and role of
authority within the Church. This section treats the Supreme Authority in the
Church (the Roman Pontiff, the College of Bishops, the Synod of Bishops, the
Cardinals of the Church, the Roman Curia, and Legates of the Roman Pontiff),
 27
as well as Particular Churches and their Groupings (Dioceses, Ecclesiastical
Provinces and Regions, Diocesan Consultative Bodies and Diocesan
Personnel). (3) Institutes of Consecrated Life and Societies of Apostolic Life
(canons 573-746) – concerned with norms governing the various ways of
living out a public consecration of life (as a member of a Religious Institute, a
Secular Institute, a member of a Society of Apostolic Life, a Hermit, or a
member of the Order of Virgins).

Book III – De Ecclesiae Munera Docendi.

This Book examines the Church’s teaching mission, especially as

accomplished in the Ministry of the Divine Word (preaching and catechesis),
the Missionary Activity of the Church, in Catholic Education, through use of
the Instruments of Social Communication (especially, books), and by the
Profession of Faith.

Book IV – De Ecclesiae Munere Sanctificandi.

This Book first examines each of the 7 Sacraments of the Church,

beginning with the 3 Sacraments of Initiation and ending with the 2
vocational Sacraments, Holy Orders and Marriage. The Book then treats
Other Acts of Divine Worship (Sacramentals, the Liturgy of the Hours,
Funeral Rites and the Veneration of the Saints, Sacred Images and Relics), as
well as Sacred Times and Places (Churches, oratories, chapels, shrines,
altars, cemeteries, and days of feast and penance).

Book V – De Bonis Ecclesiae Temporalibus.

This is the shortest Book of the new Code and it examines primarily the
Acquisition of Ecclesiastical Goods, the Administration of those Goods,
Contracts and Acts of Alienation, and Pious Wills and Foundations.

Book VI – De Sanctionibus in Ecclesia.

This Book first treats Offenses and Penalties in General, Those who are
subject to Penal Actions, Specific Penalties and other Punishments (including
censures, expiatory penalties, penal remedies and penances), the
Application of Penalties, and the Cessation of Penalties.

Book VII – De Processibus.

This Book treats of Trials in General (including discussion of the

Competent Forum, Various Grades and Kinds of Tribunals, the Discipline to
be observed in Tribunals, the Parties in a Case, Actions and Exceptions), the
Contentious Trial, Certain Special Procedures (including Matrimonial
Procedures, Cases for Declaring Nullity of Sacred Ordination, and Methods of
Avoiding a Trial), Penal Procedure, and the Process to be used in
Administrative Recourse and in the Removal and Transfer of Pastors.
28

Certainly, within this structure we can clearly see the influence of the
Second Vatican Council upon the new Code. The conciliar principle of
communio is highlighted in this structure by changing the title of Book II from
“Persons” (a treatment of individuals) to “The People of God” (a community
of persons). The conciliar emphasis on the common right and duty of all the
members of the Church to fulfill the triplex munus Christi, namely the 3-fold
office of Christ (the priestly, prophetic and kingly office), finds its place in this
new structure by the titles of Books III, IV, and V – the teaching office, the
sanctifying office, and the governing office.

The renewed ecclesiology of Vatican Council II, juridically reflected in

the new Code of Canon Law, must also provide the basis for a renewed
means of interpretation for the law. As Pope Paul VI noted to the officials of
the Roman Rota on February 4, 1977, “The revision of the new Code of
Canon Law cannot consist solely in the correction of the former one, by
arranging the contents in proper order, by adding what it seems appropriate
to add, and omitting whatever no longer applies. Rather, after the
celebration of the Second Vatican Council, the new Code must prove to be an
instrument most finely adapted to the life of the Church.”

A Summary of the Important Characteristics of the New Code

The revised Code serves to reflect, in juridic terms, the current

theological understanding of the Church and it seeks to provide order and
balance both within the ecclesial community as well as in the relationship of
the Church to the world. Some of the most important developments
contained in the current Code include:

1. The clear understanding and presentation of the Church as a

communio, “The People of God.” All members of the Church are
called to live out their baptismal identity and to carry out the
mission of Christ as priest, prophet and king. All share a common
and equal identity, dignity and mission.

2. The clear listing of the common rights and obligations that all
members of the Church share by reason of their common baptism
and confirmation.

3. The new and expanded role of the laity (and particularly of women)
in the Church.

4. The clear emphasis now placed on the role of service that persons
in authority fulfill in the Church. Positions of authority are positions
of service.
 29
5. The emphasis which now is apparent on the Particular Church as a
“portion of the people of God” and the importance of the role of the
diocesan bishop and particular law in the community.

6. The promotion of the value of subsidiarity within a hierarchical

communion.

7. The importance of consultation within the new Code and the

emphasis placed on the structures of consultation, especially within
the Particular Church and the Parish.

8. The emphasis on responsible stewardship and accountability with

regard to temporalities.

9. The centrality of the Sacraments and sacramental life in the Church.

10. The limited and restrained use of penalties in the Church, most
of which are medicinal in nature.

This Code is a contribution to the present day Church, which is likely to

require on-going reform and evolution. Eventually, this Code will be
reformed and revised and abrogated like its predecessor. However, for the
present, this Code accomplishes a very important task in the Church. It
cannot provide innovation, nor can it resolve all of the Church’s ills.
Nevertheless, the Church’s current Code does provide the limits and the
context within which we, as a People, are called to “put on Christ.” It
reflects, at least for this moment in history, the Church’s own image of itself.

[END OF SUPPLEMENT]
30

Chapter III
Canonical Constitution of the Church

Pope Paul VI, in his initial charge to the Commission for Revision of the
Code in November, 1965, suggested that they might try to formulate a
constitution for the church. He had in mind a “fundamental law” (lex
ecclesiae fundamentalis) which would set forth the basic structures of the
church, and which would form the basis for the codes of discipline for the
Latin church and the Oriental churches.
The commission did compose such a constitutional statement, and first
circulated it for reactions in 1969. It received mixed reviews. A second draft
was sent around in 1971, and it fared no better. Work continued, and at
least two more versions were in collaboration with representatives of the
Oriental Churches, in 1976 and 1980.
Many serious objections were raised against this constitutional
initiative: some felt that it would obscure the fact that Christ and his Spirit
are the true basis of the church, that the sacred scriptures are its real
constitution, and that it would be an obstacle to ecumenical progress.
Finally, the project was abandoned, but many of the canons in the Lex
Ecclesiae Fundamentalis were transformed into the Code, e.g., the list of
rights and obligations of the Christian faithful (cc. 208-223).
The following summary of the 1980 draft is presented here, not
because it has any juridical authority, but because it offers an overview of
the fundamental principles of the external structures of the Church. It was
subtitled: “The Fundamental Canonical Law of the Universal Catholic
Church.” To reiterate: it was never promulgated. (References are to the
canons of the draft)

Title I: The Church

There is only one church of Christ, the new People of God gathered by
the Holy Spirit, and that church subsists in the Catholic Church (1). The
universal church is a body of churches, made up of particular churches,
portions of God’s people, with their own bishop and presbyterate, called
together by the Spirit through the Gospel and the Eucharist. Some of these
particular churches are gathered into ritual churches, with their own
discipline, and others are joined into provinces or regions. The pilgrim
church on earth shares the lot of humankind, and always seeks its own
reform and faithfulness to its calling. It also strives that all be one in Christ,
while respecting the varieties of customs, disciplines and formulations of
doctrine (2).

Chapter I: All the Christian Faithful

Article 1: Call and Incorporation of Persons in the Church

 31
The Church recognizes the dignity of the human person and the duties
and rights which flow from it (3). All must seek the truth, and are called to
the church of Christ when they recognize it, but always freely. They have a
right to be received into the church (4). Persons are incorporated into the
church by baptism, which establishes them as subjects of duties and rights,
as long as they remain in communion (5). Those who are joined to Christ by
bonds of faith, sacraments and church governance are fully in the Catholic
communion (6). Those members of other , separated churches, who are
baptized and believe in Christ, are recognized as sisters and brothers in the
Lord; however, they are not bound by the laws of the Catholic Church (7).
Catechumens are joined to the church, which cherishes them as its own (8).

Article 2: Fundamental Rights and Duties of the Faithful

(The list of rights and obligations, canons 9 through 24 in the draft, is

substantially the same as canons 208-223 of the Code. They are
summarized in the chapter, “The People of God”)

Article 3: Diverse States of the Christian Faithful

Some of the faithful are, by ordination, sacred ministers, others laity.

From among both, some are consecrated to God and the saving mission of
the church bey profession of the evangelical counsels (25). Sacred ministers
are bound to nourish the people of God, so that together all might fulfill the
commandment of love (26). Those who publicly profess the evangelical
counsels work for the kingdom of God according to their calling (27). Laity,
by reason of their baptism, are configured to Christ and share in the church’s
saving mission and functions. They give witness to Christ by directing
temporal affairs according to God’s plan (28).

Chapter II: Hierarchical Structures of the Church

Article 1: The Pope and the College of Bishops

The Lord Jesus willed that the apostles, with Peter as their head, be the
pastors of his Church. The bishop of Rome, successor of Peter, is the head of
the college of bishops. He has supreme and full authority in the Church. The
bishops, successors of the apostles, by their sacramental consecration and
ecclesial communion, make up a college, which also has supreme and full
authority in the church (29).
The pope obtains office by election, along with Episcopal consecration
(30). The pope also has authority over all of the particular churches, so that
he can strengthen the proper authority of the bishops in those churches.
The pope is in communion with the other bishops and with the universal
church (31). The bishops assist the pope in his role as supreme pastor; one
way they do that is in the synod of bishops, a gathering of bishops from
various regions. The cardinals and other persons and institutions also assist
the pope according to the needs of the times. (32).
32
Bishops, by their consecration, receive sanctifying, teaching and ruling
functions, but they must exercise them in communion with the rest of the
college. They also share in the solicitude for all of the churches which make
up the universal church (34). The college of bishops exercises its authority
solemnly in ecumenical council, otherwise by the united collegial action of
bishops throughout the world (35). The pope convokes councils, presides
over them, sets their agenda, and approves their decrees (36).

Article 2: Patriarchs and Major Archbishops

In the Oriental churches, the patriarchs enjoy authority over clergy and
people, including the nomination of bishops, in accordance with ancient
traditions and decrees of ecumenical councils (40). Major archbishops in the
Oriental churches have similar authority (41).

Article 3: Individual Bishops

Individual bishops who have been entrusted with the care of particular
churches lead them as vicars and legates of Christ, and as pastors they
nourish their people, exercising the functions of teaching, sanctifying and
ruling. This pastoral authority, which they receive by Episcopal consecration,
is made operative by their canonical mission, which implies apostolic
communion (43). All bishops, by Christ’s command, are obliged to be
solicitous for the universal church, hence they must by concerned about the
unity and spread of faith, common discipline, and assistance for needy
churches (44)/

Article 4: Presbyters and Deacons

Presbyters share in the priesthood of Christ with their bishops, and

they are ministers of Christ, deputed by ordination to announce the word of
God, to offer sacrifice, and to forgive sins. Presbyters share in the ministry of
Christ by means of sacred ordination and the mission which they received
from bishops. They nourish the communities entrusted to them, and give aid
and counsel to bishops in caring for the people of God (46). Presbyters
together with the bishop form one presbyterium, dedicated to the service of
a particular church under the bishop’s direction; they are not related to one
another in a close sacramental fraternity (47).
Deacons, strengthened by the grace of orders, assist bishops and
presbyters, and serve the people of God in ministries of liturgy, word and
charity (48).

Chapter III: The Mission of the Church

The Church, which is a spiritual community of faithful people,

established on earth as a hierarchically ordered society, is directed to the
spread of the kingdom of God, with the aid of the Holy Spirit. The church has
its proper mission in the religious sphere, and from that mission it can offer
 33
light and energy to the human community so that it might be structured in
accord with God’s law (49). The church recognizes the autonomy, laws and
values of the temporal order, so long as they respect the Creator’s design.
The faithful, in keeping with their vocations, are to see to it that temporal
affairs are ordered in accord with God’s plan. The church is not tied to any
one form of human culture or any political, economic or social system, and it
can bond together diverse human communities (50).
The church acknowledges and defends religious liberty for all persons;
they are to be free from all coercion to lead their religious lives, privately and
publicly, according to their consciences (51). The church has a right to its
own freedom and independence, so that it can fulfill its own saving mission;
it claims the right to live in civil society according to the norms of Christian
faith (52). This religious liberty is the fundamental principle of the church’s
relationship with the state (53). The church takes it place in the community
of nations, and strives to work with them for justice and peace in the world
(54).

Title II: The Functions of the Church

The Church has a threefold function: to teach all nations, to sanctify

those who believe in Christ, and to govern God’s people. The three come
together in the Eucharist, and they are all directed to the praise of God and
the sanctification of humankind (55). Sacred ministers, i.e., bishops,
presbyters and deacons, have a leading role in these functions, but all of the
faithful, since they share in Christ’s priestly, prophetical and kingly functions
in virtue of their baptism and confirmation, also have their own role in
fulfilling these three functions (56).

Chapter I: The Teaching Function of the Church

The Church has the right to preach the Gospel to all nations, to
safeguard and announce revealed truth, and to state moral principles in the
social sphere (57). The pope and the college of bishops enjoy infallibility
when they define matters of faith or morals as divinely revealed (58). What
the church’s teaching authority proposes as divinely revealed is to be
believed with divine and Catholic faith (59). What that authority declares
non-definitively deserves religious respect (60). Bishops are authentic
teachers of the faith, and their teaching also deserves religious respect (61).
The body of bishops has the responsibility for announcing the gospel to the
whole world; individual bishops are to preach it to the people entrusted to
them (62). Presbyters and deacons also have the duty to preach the Gospel
(63), and all the faithful are to see that the Gospel message is spread (64).
The church has the right to give religious and moral instruction, and to
sponsor schools (65).

Chapter II: The Sanctifying Function of the Church

34
The Church fulfills its sanctifying function by imparting to all, the
means to holiness entrusted to it, especially in celebrations of the liturgy
(66). Bishops exercise the sanctifying function first of all; they are
dispensers of God’s mysteries and moderators of the liturgical life of the
particular church entrusted to them. Presbyters are consecrated to the
celebration of divine worship and the sanctification of the people, and
deacons share in worship as well.
The faithful also share in this sanctifying function, especially when they
participate actively in the liturgy (67). The sacraments are the chief means
of sanctification; the church’s highest authority defines and regulates the
celebration of the sacraments (68). Prayer, especially the divine office,
penance, works of charity, and the veneration of the Blessed Virgin and other
saints, are also means of sanctification (69-70)

Chapter III: The Ruling Function of the Church

The Church has been charged to rule the faithful in the name of Christ,
the Shepherd, so that they might truly live as his disciples and gain their
salvation. The Church has all the authority, i.e. legislative, executive and
judicial, required to accomplish this spiritual governance of the faithful, but it
must be used only to build up the people of God in truth and holiness (71).
The pope and the college of bishops have full and supreme authority in the
universal Church (72). Laws made by this supreme authority oblige the
faithful by issuing decrees and instructions, usually through the
congregations of the Roman Curia (74). The supreme authority normally
exercises judicial authority through tribunals, and any one of the faithful may
appeal a case to the pope at any time (75).
A bishop of a particular church has all the authority he needs to
exercise his pastoral functions (76). The bishop exercises legislative
authority personally, but he can exercise executive and judicial authority
either personally or through vicars (77). Bishops sometimes exercise
legislative authority collegially in synods, particular councils and Episcopal
conferences (78). Presbyters and deacons cooperate with bishops in the
exercise of this governing function in particular churches, especially in
councils and other offices (79). Likewise the faithful may be called upon to
share in the bishop’s governing function in various offices (80).
The church has the right to care for the spiritual governance of the
faithful and its own hierarchical order without interference from any other
authority. It must be free to select and prepare its ministers, to name and
transfer its bishops, and to communicate freely with the Holy See and with
the faithful (81). The church sponsors and organizes works of charity and
mercy for the needy and sick as well as other kinds of mutual assistance.
And the church has the right to acquire and administer temporal property to
be used for worship, the support of its ministers, and its charitable and
apostolic efforts (82).

Final Norms
 35
The canons of this fundamental law have force in the universal Church
for all the faithful (83). They prevail over all other church laws and decrees;
all contrary laws and customs lack force. Other laws are to be interpreted
and applied in accord with these canons (84). Only the pope can declare null
laws which are contrary to these canons, but tribunals should not uphold
laws which are shown to be contrary to them (85). Only the supreme
authority can abrogate these norms (86).

Critique of the Fundamental Law Draft

The foregoing “fundamental law of the church” was never

promulgated. It has not authority as canon law. It is offered here as an
example of a serious attempt to describe the basic canonical structure of the
Roman Catholic Church, an attempt to draw up a constitution for the Church.
This attempt was made by high authority, and drew heavily on the
documents of the Second Vatican Council.
No reasons were given for not issuing the fundamental law, but it does
seem to have serious shortcomings. For example, it fails to convey the basic
vision of the universal church as a communion of particular churches, and it
ignores completely the primary reality of the church, namely, local
congregations of the faithful, i.e., parishes and similar communities. The
draft scarcely alludes to such collegial bodies as the synod of bishops,
conferences of bishops, pastoral councils and priests’ councils. It is so
preoccupied with the expression of hierarchical authority that sometimes it
seems to identify the church with the hierarchy instead of the faithful, e.g. c.
71, “the church is charged to rule the Christian faithful.” However, in spite of
these shortcomings, the “Fundamental Law of the Church” may be the best
try ever made at a constitutional statement for the Church.
36
Lex Ecclesiae Fundamentalis

Title I: The Church

Ch. I: All the Christian Faithful

Art. 1: Call and Incorporation or Membership cc. 96, 205, 849, 205, 96, 204§1, 204§2,
Persons in the Church (cc. 1-8) 207§1, 207§2
Art. 2: Fundamental Rights and The Bill of Rights and Obligations cc. 208-223
Duties of the Faithful (cc. 9-24) Lay Rights and Duties cc. 224-231

Art. 3: Diverse States of the Associations of the Faithful cc. 298-329

Christian Faithful (cc. 25-28) Sacred Ministers cc. 232-293
Formation of Clerics cc. 232-264
Incardination and Transfer of Clerics cc. 265-272
Obligations and Rights of Clerics cc. 273-289
Loss of the Clerical State cc. 290-293
Ch. II: Hierarchical Structures of the
Church
Art. 1: The Pope and the College Highest Authority: Pope and College of Bishops cc.
of Bishops (cc. 29-36) 330-341
Synod of Bishops cc 342-348
Art. 2: Patriarchs and Major College of Cardinals cc. 349-359
Archbishops (cc. 40-41) The Roman Curia cc. 360-361
Papal Legates cc. 362-367
Art. 3: Individual Bishops (cc. 42- Dioceses and Bishops
44) Dioceses cc. 368-374
Bishops, Auxiliary Bishops cc. 375-411
Offices of the Diocesan Curia cc. 475-494.
Art 4: Presbyters and Deacons Parishes and Pastors cc. 374, 515-552
(cc. 45-48)
Ch. III: The Mission of the Church Consecrated and Apostolic Life cc. 573-746
(cc. 49-54)
Title II: The Functions of the
Church (cc. 55-56)
Ch. I: The Teaching Function of the Book III
Church (cc. 57-65) Ministry of the Divine Word cc. 756- 761.
Preaching cc. 762-772
Catechetical Instruction cc. 773-780
Missionary Action cc. 781-791
Catholic Education cc. 793-821
Publication of Books cc. 822-831.
The Profession of Faith cc. 833
Ch. II: The Sanctifying Function of Book IV
the Church (cc. 66-70)
Sacraments
General Rules
 Baptism
Celebration, Minister, Those to be
Baptized, Sponsors, Records
 Confirmation
Celebration, Minister, Those to be
Confirmed, Sponsors, Records
 Eucharist
 37
Celebration, Minister, Participation,
Rites and Ceremonies, Time and
Place, Reservation and Veneration,
Offerings
 Penance
Celebration, Minister, Penitent
 Anointing of the Sick
Celebration, Minister, Those to be Anointed
 Orders
Celebration, Minister, Candidates, Records
 Marriage
Pastoral Care and Marriage
Preparations, Diriment
Impediments, Consent, Form,
Celebration, Records, Mixed
Marriages, Effects, Convalidation,
Separation, Annulment
 Other acts of divine worship
Sacramentals, Liturgy of the Hours,
Funerals, Veneration of the Saints,
Vows, Oaths
 Sacred Places and Times
Places, Churches, Oratories, Shrines, Altars,
Cemeteries, Sacred Times
Ch. III: The Ruling Function of the Book I
Church (cc. 71-82)  Offices
Qualifications, Provision, Loss of Office
 Power of Governance
Ordinaries, Legislative Power, Judicial
Power, Executive Power
 Instruments and Acts of Governance
(Laws and their equivalent) Customs,
Subordinate and Subsidiary Norms
(Individual Administrative Acts)
Individual Decrees and Precepts,
Rescripts, Privileges, Dispensations
Statutes and rules of Order
Final Norms (cc. 83-86)
38
Chapter IV
Sources of Canon Law

In order to be able to give each one what is his due (right) according to
justice, it is necessary that it be determined. The concept of juridical source
makes reference precisely to the determination of that which is just.
Sources of law are first of all persons (individuals or groups) who, by
means of their acts and behaviors, determine in various ways that which is
just in a given society. In this sense, the first source of laws is God Himself,
He who has ordered creation and Redemption (divine law); and then the
human legislator, the Church herself and her communities, the judges, and in
fact any subject capable of exercising rights and accomplishing duties.
In addition, juridical sources are also said to be the acts by means of
which that which is just is established. In this sense, laws, contracts,
judgments, decrees, etc., are sources of law. The acts which can define law
are quite varied, but we shall see only those types or species of defining acts
which can be classified. The first book of the Code deals with sources of law.

A. Norms and Juridical Acts

On the basis of what we have said, it is necessary to distinguish the

two principal types of sources: norms and juridical acts.
A norm in the generic sense is rule (written or unwritten) which
determines the law for a collection of similar cases; whereas a juridical act
defines that which is just in a concrete case. For this reason we have said
that the law is not constituted only by rules, because there are also other
elements or factors which serve to specify law. Still less, it is constituted by
the code, which is only an organic collection of written norms.

B. Canonical Norms

A norm can be defined, following St. Thomas, as a rational ordination

promulgated by the authority for the common good. This definition
summarizes the characteristics of the norm. The following things detail what
exactly is meant by these characteristics:
 Rationality is the principal note of the norm. This means that first of all
it must be in conformity with (or at least not contrary to) divine law. In
other words, it must not establish anything that conflicts with that
which has been revealed concerning the Church, her mission, or the
nature of man. In this regard, the norms must be possible, necessary,
or fitting for the common good, and must command things which are
licit. An irrational norm is always unjust and therefore does not
obligate in itself, even if sometimes one must observe it to avoid a
greater evil.

A norm would be irrational that commanded or permitted the

impossible or immoral, or which limits liberty without sufficient reason,
 39
or which unjustly favors some individuals at the expense of the
community, or which is confusing;

 Norms must be made by the competent authority, which means

someone who has sufficient power to bind those whom it is given.
Furthermore, every type of norm requires a specific power and
competence; the pope, and also the College of Bishops, can make laws
for the entire Church, whereas the diocesan bishop can legislate only
for his diocese, and a conference of bishops can give norms only on
certain matters.

Is the one who issues a norm bound by it as well? In civil law, yes.
However, in the Church, because of its constitution and the way in
which power is exercised, the issue requires some distinctions. It can
be said that he who dictates the norm can also modify it, suspend, or
derogate it. Unless he does so, one presumes that he is also bound to
observe it;

 The norm must serve the common good, or that specific end for the
sake of which the members of a society are gathered together. The
end or goal of the Church and her supreme law (canon 1752) is
identified with that of Redemption: the salvation of souls. The aim of
canonical order is the establishment of the conditions of just and
peaceful ecclesial life in which all individuals (and groups) can best
develop their own capacities (the gifts received) with regard to the
goal of the Church, and every norm must contribute to this goal and
not pose an obstacle.

Precisely because canon law must contribute, according to its proper

nature, to the common ecclesial good, no activities or institutions can
find a place in it which are not in conformity with the goal of the
Church (still less if they are contrary to it).

The fact that the norms aim to procure the common good does not
mean, however, that they must be given that which is his due, not that
each is to be given the same. Furthermore, the Church is a reality in
the supernatural order, and an instrument of salvation, because the
Holy Spirit acts in it. He works according to His divine will and His
multiform action with regard to souls and institutions must be accepted
and respected as a good for the entire body (common good). For this
reason, canon law remains always attentive and open to the variety of
particular situations and charisms, by means of specific formulas and
juridical mechanisms. This enables the law of the Church to have a
greater flexibility and richness than that possessed by civil law;

 Promulgation. In order to be able to be obeyed, the norm must be able

to be known with exactitude. Promulgation is the way in which a norm
40
is officially made known to its recipients. A written law is promulgated
when it is published by the authority who issues it. (c.8)

C. Law

The most common type of juridical norm is law, so much so that it is

frequent in common language to call any type of juridical rule a law. In the
technical sense, however, law is the general written norm, promulgated by
someone who has legislative power.
In the Church, legislative, executive or administrative, and judicial
power are distinguished (c. 135, §1), even if frequently the three powers can
be exercised by one and the same organ of power (individual or collegial).
For example, the pope, a council, or the diocesan bishop can issue laws, put
them in execution, and judge on their basis. Other organs do not have all
three powers. In any case, laws can be made only by one who has legislative
power; and law constitutes the typical expression of legislative power.
Law is the most important canonical norm which regularly prevails over
all other norms. The Code deals with requirements and characteristics of the
canonical law in cc 7-22, which shall be examined below.

1. Types of Law

a. Divine Law and Human Law

We have already said that the fundamental basis of canon law is

constituted by the rules of divine law (natural and positive) that concern the
Church. In the measure in which a human law gathers and formulates a
command of divine origin, it participates in the superior and universal
binding force of the latter. Sometimes the legislator declares the divine
foundation possessed by the law, which he has made (for example, c. 207 §1
indicates that the clergy exists in the Church “by divine institution”; likewise,
c. 1084, §1 says that impotence in certain cases “by reason of its very
nature” invalidates marriage); but there are many other canons which
translate a divine precept into law even though this is not expressly
indicated. In any case, their binding force is the same.
On the other hand, laws which have their origin in the authority of the
human legislator are called “merely ecclesiastical laws” and have the
binding force that the legislator has established (and always under the
condition that they do not contradict the divine law).
For this reason, c. 11 establishes that merely ecclesiastical laws bind
those:
 who are baptized in the Catholic Church or received into it after
baptism
 who have a sufficient use of reason
 and who have completed their seventh year of age, unless the law
expressly provides otherwise.
 41
Therefore, baptized non-Catholics are not bound by ecclesiastical laws.

b. General and Particular Laws

According to the extent of their application, a law is general (common,

universal) or particular (peculiar, special). This depends in the first place on
who the legislator is. Only the Roman Pontiff and the College of Bishops
(ecumenical council) can give universal laws (for the whole Church), whereas
a particular council, the diocesan bishop, or a conference of bishops can
issue only particular laws (within their territory).
But in another case, laws are general or particular according to who
their recipients are. If the legislator directs a law to all the members of a
community, it is general or common; if, on the other hand, he addresses it
only to a group within the community, the law is particular or special.
One must also distinguish between the recipient of a law and the
subjects that are effectively bound by it; these are only those who enter
within the situation foreseen by the law itself. The Sunday precept is a
universal norm for the entire Church, but it binds only those who are over
seven years of age. Laws on marriage are also universal, but effectively
regard only those who desire to marry or are married. The fact that a law is
for all does not necessarily mean that it is applicable to every person, at
least with the same intensity.
With regard to the relation of supremacy between common or general
law and particular law, it is necessary to consider their respective authorship:
particular law has supremacy over general if both proceed from the same
authority (unless otherwise stipulated: c. 20). On the other hand, common
law given by a legislator has precedence over particular law made by
another who is inferior, who “cannot validly make a law which is contrary to
that of a higher legislator” (c. 135, §2).

c. Territorial and Personal Law

With regard to the way in which the recipients of a law are determined,
it can be territorial or personal, according to whether it concerns those who
live in a given area, or certain persons by reason of their personal condition
(military, religious, emigrants, etc.). Today, the most common criterion is
territorial (cc. 12 and 13).

d. Invalidating and Incapacitating Laws (c. 10)

In canon law, the acts contrary to a law, even if illicit, are not
necessarily null: for this to be the case it must be expressly stated by law. A
law is invalidating if it establishes the nullity of a given act (see example, c.
842 §1). Not infrequently these laws are based on divine law.

2. Promulgation
42
The forms in which laws are promulgated can be varied. Normally,
according to c. 8, universal laws are promulgated by means of their
publication “in the Acta Apostolicae Sedis”; and particular laws in the
corresponding official bulletin (of the diocese, of the conference of bishops,
etc.). However, laws can also be promulgated in other ways (e.g. by edict):
what is important is that hey be rendered public in a way that allows their
recipients to know them with precision.
From the moment of official publication of the law until they come into
effect, it is normal that there be an interval: three months for universal laws
and one month for particular laws, unless otherwise stipulated. Therefore,
the date of a law is distinct from the date it comes into effect.

3. Retroactivity

As stipulated in c. 9, laws deal with the future rather than the past;
thus normally they are not retroactive. However they can be retroactive if it
has been thus established. For example, the penal law is retroactive if this is
favorable to the delinquent. On the other hand, one must not confuse
retroactivity with the fact that the law claims to modify situations that have
already matured, which may be precisely its goal.
Finally, it has been established that general legislative decrees issued
by those who have legislative power (c. 29), or by those who, although they
do not have it directly, have received it by express delegation of the
legislator for a certain case (cc. 30 and 135 §2), are considered to be
equivalent to laws.

D. Custom

Custom is a general norm established by usage in a community.

In fact, customs are part of the life of men and of communities, and
establish models of conduct commonly accepted as just, which therefore
must be respected.
In every juridical order, the rules established by habitual common
practice have certain binding force born from the general conviction to that
that which is always done is just, and manifests common sense with regard
to that which is to be done. Custom is thus a norm that is born from the
people; precisely for this reason it has great importance as a vehicle for the
adaptation of law to life and to concrete circumstances. In the ecclesial
society, custom is a normative expression of the common sentiment of the
faithful, who are all called to the building up of the Church. It can acquire
legal force according to the conditions given in cc. 23-28.
Custom is referred to as “according to law” (secundum legem) when it
determines the concrete and legitimate way of carrying out that which is
established by the law; in this regard it is said that “custom is the best
interpreter of the law” (c. 27).
 43
Custom is referred to as “outside the law” (praeter legem: beyond the
law) when it adds things not commanded by the law, so that it completes the
legal order.
Custom “against the law” (contra legem) is that which establishes
something in contrast with that which is determined by a law, and thus tends
to substitute it.
In order for custom to have the value of a juridical norm, it is
necessary:
 that it be reasonable (as for every norm); according to c. 24, this
cannot be the case for a custom contrary to divine law nor for that
which is expressly excluded by human law;
 that it be observed in a stable way by a community as a norm of
justice. In other words, there must exist the common conviction that it
is binding (c. 25);
 that ii be approved by the legislator (c. 23), in the sense that he has
allowed it, or at least not expressly excluded it. This happens for
example in c. 1076, which reprobates the introduction of new
matrimonial impediments and the suppression of those which have
been established;
 that it be a usage that has been observed for the required length of
time (c. 26).

Custom is revoked by a law or another custom that is contrary;

“however, unless it makes express mention of centenary or immemorial
customs, a law does not revoke them, nor does a universal law revoke
particular customs” (c. 28).

E. Administrative Norms

Administrative norms are general norms for a general group of cases.

They are issued by administrative organs with executive power, with the
purpose of specifying the content of laws. They are therefore accessory and
inferior to the law. It follows that these norms can neither change nor
contradict the law, and to the extent that they do so, are invalid (cc. 33 §1
and 34 §2). Administrative norms can be either general executory decrees
or instructions.

1. General Executory Decrees

General executory decrees are defined in c. 31 as those “which define

the manner of application, or urge the observance of laws.” They must be
promulgated and cease when the are revoked by the authority or by
cessation of the law to which they refer. (c. 33 §2).
Those who possess executive power can issue these decrees within the
terms of their competence. In this area they bind those who are subject to
the law in question (c. 32)
There also exist autonomous decrees which are not tied to a law, such
as those issued by the dicasteries of the Roman Curia on matters of their
44
competence. Not even these decrees (starting with those of the
Congregations) can contradict or modify laws.

2. Instructions

Instructions are rules similar to decrees but directed to those whose

duty it is to execute the law, or to see that it is executed (generally to those
who hold office) (c. 34).

F. Statutes and Rules of Order

Statutes and rules of order are two types of norms which help to
govern meetings or assemblies (e.g., a council, an association) and the life
and the carrying out of the activities of institutions.

1. Statutes

Statutes are the norms which regulate the life of institutions (e.g.,
associations, institutes, councils, foundations), for which they define the
“purpose, constitution, governance, and manner of acting” (c. 94 §1). They
directly bind only those who form part of the institution (members) or those
who govern it, but indirectly they concern also those who have relations with
such institutions (c. 94, §2).
Frequently the statutes are drawn up and approved by the institution
itself as an expression of their proper autonomy, and they constitute their
particular law within the framework of general law. However, in the case of
institutions which form part of the organization of the Church, it can happen
that the legislative authority itself gives the statures to an institution. In this
case they are properly a particular law (c. 94 §3).

2. Rules of Order

Rules of order are norms which regulate conferences or gatherings of

people (a synod, an election) and which determine the order to be followed
(who presides, who must be convoked, the agenda, how decisions are made,
etc.). Those who take part in a session are bound to the ordinance that has
been established (c. 95).

G. Singular Administrative Acts

In contrast to norms, juridical acts are a source of law in individual

cases. Administrative acts are those juridical acts determined by the
executive authority to a concrete subject (c. 36 §2). In other words, they are
the decisions or resolutions taken by the authority with regard to particular
cases. They must be formulated in writing (c. 37).
Normally administrative acts have the purpose of applying the law to
an individual case, and therefore they cannot contradict it unless it is the
legislator himself who issues it (c. 38). However there are cases in which the
 45
act is issued precisely so that the law will not be applied in a concrete case
(we are referring to the example of dispensation, c. 85).
Singular acts are often the result of the activity of different subjects.
Thus they have a complex process of formation, sometimes regulated by
law, as, for example, when there is a petition of the interested party, that a
college give its opinion (or its consent), that certain documents be
presented, etc. The validity of the act which results may depend on respect
for the established procedure.
One may have recourse against the singular acts of the authority,
except for those directly issued by the Roman Pontiff or by an ecumenical
council (c. 1732). Administrative silence is important with regard to
recourse: if within three months from the time of the request no response
has been expressed by the authority, it is presumed to be negative, and
therefore the interested party may have recourse against the denial (c. 57).
There are many types of administrative acts according to their content
(appointments, grants, mandates, permissions, concessions, etc.). From a
formal point of view, c. 35 distinguishes three types: decrees, precepts and
rescripts.

1. Singular Decrees

The singular decree is defined in c. 48 as that act “issued by a

competent executive authority, whereby in accordance with norms of law a
decision is given or a provision made for a particular case; of its nature, this
decision or provision does not presuppose that a petition has been made by
anyone.”
This is the common type of administrative act. In fact, making
decisions or provisions can include any action (giving, commanding,
prohibiting, appointing, electing, authorizing, etc.). For this reason, any
administrative act must have the same requirements and be issued in the
form of a decree. The fact that a previous petition by someone is not
required does not mean that there cannot be one, and therefore it is possible
to have recourse against the denial (c. 57).
The interested party must be notified in writing about the decree and
apprised of the authority that has issued it and the reasons for the decision
(cc. 37 and 51). Notification is to singular acts what promulgation is to
general norms. Thus the decree is not effective until notification has been
given (c. 54). In exceptional cases it is sufficient that the decree be read to
the interested party in the presence of a notary or two witnesses (cc. 55 and
56).

2. Singular Precepts

Singular precepts are decrees which have an imperative character, in

that they directly command or prohibit a specific person or persons with
regard to something established in the law (c. 49).
Especially important are penal precepts, in which the authority
threatens with a penalty those who disobey a precept (c. 1319).
46

3. Rescripts

Rescripts are singular written acts, by means of which the competent

administrative authority concedes a favor (privilege, dispensation,
permission, etc.) in response to someone’s request (c. 59). In principle,
anyone has the right to ask a favor (c. 60). The right to petition, in fact, is a
fundamental right (c. 212, §2)
The following are specific characteristics of a rescript:
 It responds to a motivated request of an interested party ( which
request is called the petition). Therefore the validity of the concession
normally depends on whether the motives adduced were true and
upright. In fact, the falsity of motives (obreption) or the suppression of
essential elements (subreption) invalidate the rescript, unless the
authority has granted the favor motu proprio, meaning independently
of the expressed motives (c. 63);
 It is an act of favor with regard to the one who requests it or to a third
party. Thus it is the responsibility of the authority to judge if it should
be conceded or not.

A favor denied by an authority cannot subsequently be granted by

another inferior authority, although this can be done by one of the same
level, according to the conditions of cc. 64 and 65. This seeks to avoid
conflicts between authorities to the detriment of communion.
Two particular types of favor exist that are normally conceded with a
rescript: a privilege and a dispensation.

a. Privilege

Privilege is a favor conceded to a particular subject by the legislator by

virtue of his power to legislate. It is a type of singular law in favor of certain
persons (confraternity, family, individual). It is real if it is conceded to a
place (shrine, church, chapel). A privilege in principle is perpetual, in that it
terminates only when the privileged subject or place ceases to exist.

b. Dispensation

A dispensation is “the relaxation of a merely ecclesiastical law in a

particular case” (c. 85).
In fact, divine law cannot be dispensed from. Nor do all norms of
human law admit of dispensation, since the Code stipulates that “in so far as
laws define those elements which are essentially constitutive of institutes or
of juridical acts, they are not subject to dispensation” (c. 86). These are
elements without which such institutes or acts cannot truly exist (thus, for
example, consent of the parties to a contract or marriage cannot be subject
to dispensation).
Those persons have the power to grand dispensations, within the limits
of their competence, who enjoy executive (administrative) power and those
 47
to whom the power to dispense has been conceded by delegation or by law
(c. 85).
In cc. 87-89, the competence to grant dispensations is established. As
a general rule: the legislator can dispense from his own laws; the diocesan
bishop can dispense also from laws issued by the supreme authority of the
Church, except for penal and procedural laws and those whose dispensation
is especially reserved to the Holy See or to another authority (see, for
example, c. 291); the local Ordinary can dispense from diocesan laws and
from those of regional or provincial councils or of the conference of bishops;
other clerics can dispense only in the specific cases determined by law or by
delegation (see, for example, cc. 1079, 1080, 1196). In case of urgent
danger, any Ordinary can dispense from a law which is subject to
dispensation, even if it is reserved to the Apostolic See, “provided that the
dispensation is one which the Holy See customarily grants under the same
circumstances” (see, on the contrary, c. 1078, §3).
For the validity of the dispensation, it is necessary that there be “a just
and reasonable cause” proportionate to the gravity of the law from which the
dispensation is given, unless the dispensation is granted by the legislator or
by his superior, in which case it is valid but illicit (c. 90).
Dispensation is one of the elements that give flexibility to canon law,
preventing that the rigid application of the law in a concrete case might
provoke a greater harm than that caused by its temporary exoneration. This
requires a balanced judgment by the authority in view of the spiritual good of
the faithful (both those directly interested and others).

H. Judicial Acts

The acts of the judicial power are also a source of law in that they
determine that which is just in a controverted case, on the basis of that
which is determined in the general norms. Normally, trials end with a
judgment or with a decree of the judge in which the question posed by the
parties is decided. However, there are also other acts of the judge through
the course of the trial which create or modify the law, and thus are juridical
sources (for example, when the judge accepts the request of a petitioner,
there originates the right of the respondent to be called in process as a
party).

I. Private Juridical Acts

Another source of law that is of great importance is the juridical acts

that members of the faithful (individuals or groups) make using their private
autonomy, with the purpose of stabilizing and organizing their relationships
with each other (contracts, religious profession, marriage). These acts,
which are born from the will of private subjects, are called in general juridical
acts or affairs (cc. 124-128).
Juridical acts or affairs, whether of the authority (public) or of
individuals (private), can be quite varied. Here we do not intend to examine
them all, but rather to study their general elements. Among these elements,
48
one must distinguish those that are constitutive (essential, substantial),
necessary for validity, from those that are legal requirements.
It is essential for any juridical act that it be a truly human act, that is,
one that is realized by a capable subject who acts with knowledge and free
will (c. 124 §1). An act done by someone who is completely incapable,
whether through ignorance or error with regard to the substance, or without
free consent, is absolutely invalid. Besides these common essential
elements, every act can have specific constitutive elements (for example,
only someone of the male sex is capable or receiving the sacrament of
orders). It should be remembered that constitutive or essential elements
cannot be substituted or dispensed by the authority (c. 86).
Nevertheless, it can happen that an essential element be only partially
lacking. In this case, the act can be valid but capable of being rescinded,
quashed, or annulled; this is the case of one who accomplishes an act for
which he is relatively incapable either on account of non-substantial error or
ignorance (cc. 125, §2 and 126). The relative nullity, or the fact that an act
has the capacity to be annulled, signifies that it is valid and efficacious but
can be annulled by a decision of the judge.
The legal requirements are those established by the law. Their lack
may or may not be the cause of the nullity of the act, depending on what has
been prescribed in this regard by the law itself: i.e., whether it is invalidating
or incapacitating (c. 10). These requirements are normally dispensable.
 49
Chapter V
The Governing Function of the Church

A. Power of Governance

One of the major achievements of Vatican II was certainly that of

considering ecclesiologically the position of all faithful. The second chapter
of the Constitution on the Church, Lumen Gentium, thus discusses first the
“people of God,” and subsequently the hierarchy, laity and religious. The
council had recourse to the sop-called munus triplex theory in considering
the different tasks that the faithful have. This theory focuses on the
threefold ministry of Christ, namely, that of prophet, priest, and king, and the
participation of the faithful therein. Through baptism all share in the
priesthood of Christ, but his common priesthood differs in essence from the
ministerial or hierarchical priesthood. Crucial for this difference is the sacred
power (potestas sacra), which the ministerial priest (sacerdos) possesses. It
is exactly here that the concepts of munus and potestas come together.
Traditionally a differentiation has been made between the powers of
orders and jurisdiction. It was for Vatican II to answer two questions related
to this. The first one concerned the difference between the priesthood and
episcopacy: Was the difference only on the level of a superior jurisdiction of
the bishop? The second question had arisen after Vatican I, namely: What is
the source of the power of jurisdiction of diocesan bishops? Are they mere
delegates of the Roman Pontiff?
Vatican II answers these questions by stating that Episcopal
consecration is the fullness of the sacrament of orders and that the Episcopal
consecration confers not only the office (munus) of sanctifying, but also the
offices of teaching and governing. The diocesan bishop governs his flock as
vicar and legate of Christ by authority and, as the council calls it, by sacred
power. This power is proper, ordinary, and immediate. Since the council
here made use of both terms, munera and potestas, and because the Church
had traditionally used the language of power of orders and jurisdiction, a
“Preliminary Explanatory Note” was added to Lumen Gentium. It states, in
part,

In consecration is given and ontological participation in sacred

functions [munerum].
… The word functions is used deliberately, rather than powers
[potestatum], since this latter word could be understood as ready
to go into action. But for such ready power to be had, it needs
canonical or juridical determination by hierarchical authority.

The council stated the presbyters share with bishops in the priesthood
of Christ and thus depend on the bishop for the exercise of their power. The
council did not speak about deacons and sacred power or about functions
which concern the power of governance. Furthermore, the council never
discussed the sacred power of the laity, but affirmed that all the faithful do
participate in the threefold ministry of Christ.
50
As Pope John Paul II mentioned when he promulgated the 1983 code, it
is the task of canon law to “translate” these theological insights into
concrete canonical norms.

Who then can exercise the power of governance?

Canon 129 states that those in sacred orders are ‘capable’ (habiles) of
this power of governance, i.e. the various offices related to the exercise of
this power may be entrusted to clerics (i.e. deacons, priests, Bishops), within
the limits determined by the law. Thus, all clerics do not exercise the same
power in the same way or to the same extent. Vatican II made it clear that,
even among Bishops, ‘a canonical or juridical determination through
hierarchical authority is required for such power ordered to action. For the
Council, the reception of consecration was not in itself enough to be able to
carry out a particular function: a further hierarchical act was necessary, e.g.
receiving the care of a portion of the People of God, assignment to a specific
task within the Church. This determination may be described as a ‘canonical
mission’ (missio canonica).
The power of governance is normally exercised in the external forum,
but sometimes it is exercised in the internal forum only, but in such a way
that the effects which its exercise normally has in the external forum, are not
acknowledged in this forum except as is established by law in certain
instances. (canon 130)

Distinctions according to canon 131:

1. Ordinary and Delegated

Power of governance is described as ordinary when it is attached to a
specific office by reason of the law itself e.g. a diocesan Bishop has
legislative, executive and judicial power in his diocese (cf. c. 391, §1). As
soon as a person lawfully takes possession of a particular office, he obtains
whatever power belongs intrinsically to that office.
Power of governance is described as delegated when it is conferred
upon a person by special concession, either by the law itself (e.g. c. 976,
1079-1080) or by someone enjoying the ordinary power of governance, e.g.
local Ordinary or a parish priest can delegate a deacon or another priest to
assist at a marriage (cf. c. 1108 §1). In brief, therefore, while the exercise of
ordinary power comes to a person indirectly by reason of the office which
has by law been assigned to that person, the exercise of delegated power is
given directly to the person in question.

2. Proper and Vicarious

The ordinary power of governance is proper when it is exercised by the
person who holds a particular office, e.g. a diocesan Bishop acting in his own
name exercises proper ordinary power of governance. That ordinary power
is described as vicarious when, although attached to a particular office, it is
exercised by someone who is specifically acting in the name of the office
 51
holder: Vicars-general, Episcopal vicars and Judicial vicars are clear instances
in point (cf. c 475,476,479,1420 §1-2).

A practical matter related to the first distinction is the need for proof
that one has in fact been delegated to perform some act. Canon 131 ends
with a practical principle in this regard (§3): anyone claiming to have been
delegated, whether by law or by another person, whether for one occasion or
habitually, must be able to prove the fact of delegation. This highlights the
need that all forms of delegation be given in writing.

Canon 132. Habitual Faculties

A faculty is a grant by a higher authority enabling a subordinate to act

in a way that the recipient would not otherwise be empowered or authorized
to act.
Habitual faculties are one type of delegated faculties. When they are
granted to an Ordinary in virtue of his office, they do not cease with the
cessation of the office holder’s authority and may therefore be exercised by
the ordinary’s successor. Unless otherwise provided in the grant or unless
the ordinary was chosen for personal qualifications, habitual faculties do not
cease with the cessation of the ordinary’s authority.
The vicar general and the Episcopal vicar also possess the habitual
faculties granted to a bishop by the Apostolic See, unless other provisions
have been expressly made or the bishop has been chosen because of
personal qualifications (cf. c. 479, §3)

Canon 133. Validity of Acts Placed by a Delegate

The first paragraph of the canon concerns the substance of the

delegation and the second one the manner of executing it. There are then
two reasons which cause an act to be placed invalidly:
(1) The person acts beyond the power he has been granted. Invalidity
could also be due to the limitations of the one who delegates, because what
one does not have one cannot give. However, note that delegation given for
all cases (ad universitatem casuum) is to be broadly interpreted (c. 138).
(2) The person does not act in the prescribed way as determined for
validity. Canon 39 determines that conditions affecting the validity of
administrative acts are expressed with the words “if”, “unless”, or “provided
that”.

Ordinaries (c. 134)

This canon determines who in canon law is considered to be an

ordinary, and differentiates between personal and local ordinaries. Personal
ordinaries are superiors of clerical religious institutes of pontifical right and
clerical societies of apostolic life of pontifical right: the others mentioned in
paragraph one are local ordinaries. To be added to the list of local ordinaries
is the ordinary of a personal prelature (c. 295, §1).
52
The third paragraph differentiates between a diocesan bishop and
those equivalent to him according to canons 381, §2 and 368 on the one
hand. At times the code prescribes that only the diocesan bishop can act.
When a bishop extends this “reserved” power to a vicar general or an
Episcopal vicar (cf. c. 479, §1-2), the latter act not with ordinary vicarious
power, but in virtue of delegated power (cf. c 131)

The power of governance is subdivided into legislative, executive, and

judicial powers (c. 135). In the Church there has been a long tradition of
recognizing legislative and judicial power. Since the Council of Trent,
decisions have also been made in an administrative way. In the 1983 code
this type of governance is called executive power. It is important to note
that in the Church those who have legislative power are also the ones who
implement the law, that is, who have executive power. The reverse,
however, is not true, because the code states that those who have executive
power normally have no legislative power (c. 30) and that general executory
decrees may not affect the law (cc. 30, 33§1, 34§1). Nevertheless, a
problem may occur when executive power is delegated to exercise
legislative power (c.30), since in principle executive power is subject to
legislative power.
The Scope of Executive Power (c. 136). Unless the nature of the
matter or a prescript of law establishes otherwise, a person is able to
exercise executive power over his subjects, even when he or they are
outside his territory; he is also able to exercise this power over travelers
actually present in the territory if it concerns granting favors or executing
universal laws or particular laws which bind them according to the norm of
canon 13, §2 2°.
Someone holding an office to which is attached ordinary executive
power, be it proper or vicarious (cf. c.131), may delegate such power. A
person who has been delegated may under certain circumstance sub-
delegate such power. Canon 137 regulates delegation and sub-delegation.
It should be noted that delegation and sub-delegation are not allowed when
the law expressly states this (e.g. cc. 508 §1, 969 §1). Of course, a person
can sub-delegate only what he possesses himself and may exercise
legitimately (c. 133).
When power is delegated for all cases, it is to be interpreted favorably
and therefore broadly. (c. 138) However, when it is not delegated for all
cases, a strict interpretation is necessary. This parallels the interpretation of
dispensations, for the power to dispense granted for all cases is to be
interpreted broadly, but when it is granted for a particular case, the
dispensation is to be interpreted strictly (cc. 36 §1, 92) as is the power
granted for a particular case (c. 92).
The competence of a person to place an executive act is not
suspended when a higher competent authority is approached unless the law
prescribes otherwise. However a lower authority should not act when a
higher authority has been approached. The norm is a moral exhortation, for
even the exception mentioned in the norm touches only the liceity of an act.
Any action by the competent lower authority would be valid. Hence, the
 53
purpose of the second paragraph is to avoid undermining the higher
authority. Canon 139 provides for a situation where a decision has not been
made by anyone. Once, however, a decision has been made, canons 64-65
apply which prescribe what is to be done once a favor has been denied.
Canon 140 provides rules for situations where several people have
been delegated jointly (§1) or where a college has been given the delegation
(§2). A delegation to individuals jointly is to be distinguished from successive
delegation (cf. c. 141).
A delegation granted jointly implies that every single individual is
equally fully competent to act, but that the first one who uses the delegated
power excludes the others from acting legitimately. They continue to hold
the delegated power but may no longer exercise it; hence, if one of these
persons should act, it would be valid, but illicit. However, if the first one to
take action does not fulfill or terminate his task, the others are equally
competent to licitly exercise their delegated power once again. The fact that
the first individual is unable or unwilling to proceed in the matter must be
established authentically.
When delegated power is given to a college, that power is to be
exercised according to canon 119. In distinction to individuals who are
jointly delegated, the members of a college do not receive the delegation
individually, but only as a college. Hence, they ought to act according to
canon 119 unless the delegating person has provided otherwise, e.g. by
prescribing that a majority different from the one in canon 119 suffices for
approval of an action.
Normally the act of delegation itself indicates whether it is given to
individuals jointly or to a college. Should this not be clear, then it is to be
presumed that the delegation has been given to the individuals jointly.
When several persons have been delegated successively, that person
is to take care of the affair whose mandate is the earlier and has no been
subsequently revoked.
Delegated power ceases:
(1) By the fulfillment of the mandate;
(2) By the lapse of time (cf. 202-203) or by the completion of the
number of cases for which it is granted;
(3) By the cessation o f the final cause of the delegation;
(4) By the revocation of the one delegating, directly communicated –
that is, communicating officially to the delegate;
(5) By the resignation of the delegate, made known to and accepted by
the one delegating.
However, the delegated power does not cease when the authority of
the one delegating expires, unless this appears in attached clauses. Thus, a
priest who has been delegated to dispense from matrimonial impediment
can still do so even when the bishop who delegated him resigns from his
office or is transferred. This would not be the case, however, if the bishop
had explicitly determined otherwise.
It should be remembered that sub-delegation can never extend beyond
what the one sub-delegating possesses. Thus, when delegated power was
54
granted for a specific time, the sub-delegation cannot go beyond those
limits.
Cessation of Ordinary Power (c. 143)
Sine ordinary power of governance comes with an office (cf. c. 131), it
is lost when the office is lost. This is applicable to both proper and vicarious
ordinary power. Ecclesiastical office can be lost by way of resignation,
transfer, removal, or privation (cc. 184-196). Since the law foresees that a
person might appeal or have recourse against a removal or privation (cf. cc.
1353,1733-1739), it states that in such a case the power held in virtue of
that office is suspended. Hence, until the matter is definitely settled, the
person continues to hold office, but may not exercise the power attached to
the office. In the meantime the competent authority must make an
appropriate provision (c.1747,§3).
An excommunicated person is prohibited from discharging any
ecclesiastical office, ministries, or functions, and is forbidden to place acts of
governance (c. 1331,§1). Should a person nevertheless do so, the acts would
be valid, but illicit, unless the excommunication had been declared or
imposed, in which case the acts would be invalid (c. 1331§2,2°). A
suspension forbids either all or some acts of the power of governance and
the exercise of all or some rights attached to an office (c. 1333§1,2°,3°).
Acts nevertheless placed would be illicit but valid, unless a law or precept
had determined that the suspended cleric could not validly place acts of
governance after a condemnatory or declaratory sentence (c. 1333§2).

B. Ecclesiastical Offices

The Church has developed various legal structures to carry out its
mission of continuing the work of Christ in the world: the listing of common
responsibilities arising from Christian initiation for all the Christian faithful
(e.g., cc. 208-223), the recognition and promotion of charisms as given by
the Spirit, the delegation of individuals for specific tasks (e.g. cc. 137-142),
and the institution of ecclesiastical offices. Office provides a key structure in
support of the Church’s mission, for unlike the other approaches, the
creation of an office assures that an important function will be continued in
the Church even after the initial officeholder is not longer available. In the
Church, an office is a function established in a stable manner by divine or
ecclesiastical ordinance, to be carried out for a spiritual purpose by one who
has been legitimately named to the office (cc. 145-146).
Historically, ordination and office were tied together. This was the
meaning of “relative ordination” as mandated by the early councils of the
Church. A person was ordained for service in a particular locality, and was
not to move from there. Clergy were identified with the place for which they
were ordained. Beginning in the late fourth century, the Roman Empire
assured support for clergy through a system parallel to its civil service, but
based on this principle of ordination tied to a place. When this form of
financial support was lost with the collapse of the empire in the West, a
system of “benefice” gradually replaced it; that is, an assured source of
 55
income (e.g. from a vineyard, farm, etc.) was tied to the place where the
cleric was ordained to serve.
During the Middle Ages, some major shifts took place which affected
the Church’s discipline on orders and on church offices. With the
development of mendicant clergy and due to some other factors, “absolute”
ordination was adopted in the West. This meant that ordination was no
longer tied to a specific place. At the same time, church offices were
recognized as legal entities distinct from their officeholders. But the
economic dimension of the office (the benefice system) overshadowed the
spiritual function, at least in canon law. Moreover, as a result of the lay
investiture controversy, ecclesiastical office became increasingly a clerical
concern: only ecclesiastics could confer an office in the Church, and
eventually only clergy could be named to church offices.
The 1917 code summed up this clerical monopoly on offices in its
canon 145, recognizing a broad sense of office (any function performed for a
spiritual purpose), but narrowing the legal use of office to the strict sense of
“any function constituted in a stable manner by divine or ecclesiastical
ordinance, to be conferred according to the norms of canon law, involving at
least some participation in the powers of either orders or jurisdiction.”
Canon 118 of that code restricted the power of orders and jurisdiction to the
clergy. Thus only clergy could be named to church offices. Although offices
were divided into benefices and non-beneficiary offices, all of them were
restricted to clergy.
The Second Vatican Council affected ecclesiastical offices in several
ways. In dealing with financial support for the clergy, the council separated
office from benefice, called for a new system of clergy support to replace
benefices, and declared that in the future the legal understanding of office
was to be any function conferred in a stable manner for a spiritual purpose.
The council also called for a more active involvement of lay persons in the
life and mission of the Church, including many functions which are
constituted as offices; indeed, the council encouraged bishops to name lay
persons to church offices (LG 37).
Keeping these conciliar developments in mind, the drafters of the 1983
code moved the treatment of ecclesiastical offices from the section on
clergy, where it appeared in the 1917 code, and located it among the
general norms of Book I to make it clear that church offices are not longer
restricted to clergy.

The 1983 Code has four key concepts of what an ecclesiastical office
is:

1. An office is a function (in Latin, munus).

Offices are not honorific; they involve doing something. As church
officials, they entail doing something on behalf of the Church and of Christ.
An office is not for one’s own sake, but is to be exercised for the sake of
other people.
Munus (function) is frequently used for the threefold ministry of Christ:
to teach, to sanctify, and to govern. Offices in the Church participate in
56
these functions in various ways. Some offices are constitutional, central to
the organization and functioning of the Church as the continuation of Christ’s
mission (e.g. Pope, diocesan bishop, pastor). Other offices are auxiliary,
assisting in but not central to that mission (offices of the Roman curia or of a
bishops’ conference, of a diocesan curia or religious institutes).
The function may be a responsibility the officeholder carries out
individually; or it may entail collective action, such as membership in an
ecumenical or particular council, in a conference of bishops or on the council
of a religious institute, in the presbyteral council or finance council, and so
on.
The function carries with it various obligations and rights. These are to
be spelled out in the law or by decree of a competent authority.

2. An ecclesiastical office must be constituted by divine or

ecclesiastical ordinance.
“Ordinance” (in Latin, ordinatio) is a broader term than “law,” although
laws are an example of ordinances. Ordinances area also contained in some
general executive acts (e.g. cc. 29-34) and in statutes (c. 94). Ordinances
can have a divine origin (e.g. c. 113§1); they can also arise from the customs
of the community.
Church offices are not created by secular authorities; neither are they
created by private individuals or groups. They must have an appropriate
canonical origin. The principle calls to mind the tensions of the lay
investiture controversy which racked the Church in earlier centuries, and
which was settled by emphasizing the Church’s control over its own offices.
Commentators commonly list as offices arising from divine ordinance
the office of the Petrine ministry (pope), the college of bishops, and the office
of the diocesan bishop (although the creation of individual dioceses is a
matter of ecclesiastical law). Other offices are considered to be constituted
by ecclesiastical ordinance.
Some offices come into existence when the juridic structure they
served is created. So, when a diocese is erected, by that very fact the law
constitutes the office of diocesan bishop for that diocese (c. 369). When a
parish is erected, the law constitutes the office of pastor (c. 515). When the
proper authority of a religious institute establishes a province (c. 621) or a
house (c. 608), the law itself creates the corresponding office of superior.
Other offices come into existence either when a law creates them (for
example, a diocesan law setting up an office of parish religious education
director), or when a competent authority establishes one by decree (e.g., the
bishop issues a decree consisting the office of diocesan director of ministry
to the handicap)

3. An office is constituted in a stable manner.

“Stable” here can be understood both in an objective sense (i.e., the
office itself continues, even when there is no officeholder) and in a subjective
sense (i.e. the person named to the office holds it for a notable period of
time)
 57
The canon says an office is “constituted” in a stable manner. This is
the objective sense of the term, and is in keeping with canonical tradition.
An office is created to assure that a given function will continue in the
Church, even after the initial officeholder departs. An office exists for the
good of the Church and does not depend on the charisma or gifts of a
particular officeholder. This is one of the differences between delegation,
which is given to an individual, and an office, which has an existence beyond
the individual who carries it out.
Stability does not mean an office is perpetual. Some offices exist only
for a time or for certain circumstances, such as those of a diocesan or parish
administrator (cc. 430§1; 540), or that of an official of a synod of bishops (c.
347§1).

4. An office is constituted for a spiritual purpose.

This is in keeping with the purpose or canon law, for the salvation of
souls is the supreme law of the Church (c.1752). Yet a spiritual purpose is
not disembodied, as is clear from such mundane realities as temporal goods
in the Church which exist for the spiritual purpose of providing for divine
worship, the support of clergy and other ministers, and works of the
apostolate and charity (c.1254§2).
Anyone who performs a function in the Church ultimately does it for a
spiritual purpose, but not all such functions are constituted as offices. For
example, workers can be employed without their work becoming an
ecclesiastical office (cf. c.1286). The Church relies on a variety of volunteers
in carrying out its mission, but they are not necessarily appointed to an
office. Clergy are ordained for a spiritual service in the Church (c.1008), but
do not as such hold an ecclesiastical office; office is distinct from sacred
ordination. Lay persons can be admitted on a stable basis to the ministries
of lector and acolyte, but in themselves these ministries do not constitute
ecclesiastical offices (c. 230§1). Other lay persons may supply for certain of
the duties of ministers in the Church (c. 230§3), but of itself this does not
confer on them an ecclesiastical office.
When a function is constituted as an ecclesiastical office, the effect is
that the person who performs that function for a spiritual purpose does so in
the name of the Church. The spiritual purpose is provided not on the
initiative of the individual, nor as a result of the person’s charisma alone, but
primarily as an act of the Church, for officeholders act in the name of the
Church when they carry out Christ’s priestly, prophetic, or royal functions in
virtue of their office.
For a function to be constituted as an ecclesiastical office, all four
elements must be present: it must be a function, constituted in a stable
manner, through divine or ecclesiastical ordinance, and for a spiritual
purpose. It is not required, however, that the office involve the exercise of
the power of orders or of governance. Some offices are the source of
financial support for the officeholder (cf. c. 195) although generally offices
not longer include the element of a benefice (cf. c.1274§1).
58
What is the practical importance of whether a position is an
ecclesiastical office or not? There are several.
First, erecting a position as an ecclesiastical office is a commitment by
church officials to the people of God that this function is important enough to
be assured on their behalf, even when the initial officeholder is no longer
available.
Second, the law sets various criteria for appointment to an
ecclesiastical office. It also provides a procedure for appointment which
assures that the criteria will be followed. Thus the law assures the faithful
that they will be served by competent ministers.
Third, each office has its own “job description” or list of obligations and
rights. An officeholder is assured the right to initiative and is held
responsible for fulfilling this job description. That is, the officeholder is
presumed to be free to do what is needed to carry out the obligations and
rights of the office without need for further authorization, unless this is
explicitly required (cf. c.138: ordinary power is to be interpreted broadly).
On the other hand, there are established expectations to which the
officeholder can be held accountable by the proper church authorities. This
safeguards both the officeholder and the interests of the community.
Finally, the law establishes criteria and procedures for loss of office; it
is not done at the whim of a superior. This safeguards the interests of both
the officeholder and the community, as well as the concerns of higher
authorities.
If a position has not been erected as an office, are there any
safeguards for people who perform these important services in the Church
today? One safeguard could be contracts, which in canon law generally have
the same force as in secular law (c.1290). Another approach could be a
standard diocesan employment policy which incorporates the various
safeguards the canons provide for ecclesiastical offices. But it can be
questioned why parallel systems need to be developed, when canon law
already provides a time-tested system of offices to provide for “human
resources” in the Church’s mission. If the system of ecclesiastical offices is
not being respected in practice, there is little reason to hope that other
systems will be effective either.
Some institutions and offices for the government of the diocese are:
(1) Coadjutor and Auxiliary Bishops cc. 403-411
(2) The Diocesan Synod cc. 460-468
(3) The Diocesan Curia cc. 469-474
(4) The Diocesan Vicars cc. 475-481
(5) The Finance Committee cc. 492-493
(6) The Diocesan Financial Administrator c. 494
(7) The Council of Priests cc. 495-501
(8) The College of Consultors c. 502
(9) The Chapter of Canons cc. 503-510
(10) The Pastoral Council cc. 511-514
(11) The Parish Priest cc. 515-552
(12) Vicars Forane cc. 553-555
(13) Rectors of Churches cc. 556-563
 59
(14) Chaplains cc. 564-572

The Provision of Ecclesiastical Office (cc. 146-183)

The process of conferring and acquiring an ecclesiastical office is called

the canonical provision of office. It takes place in one of four ways:

1. Free Conferral.
A diocesan bishop, for example, provides for offices in the diocese,
e.g., appoints priests as pastors of parishes, by freely conferring them on the
persons he judges best suited to exercise them (cc. 147,157). Most offices in
the church are filled by free conferral. In free conferral, the same authority
selects the candidate and confers the office.

2. Presentation followed by installation.

In presentation, one person or group has the right to select one or
more candidates, but a separate competent authority installs (confers) the
office. If someone has the right to present a candidate, a church authority
must still confirm or install the candidate. For example, when a bishop has
entrusted a parish to a religious community, the superior of the community
might have the right to present a candidate for pastor, and then the bishop
names him pastor (cc. 147,158-163,682). Another example is a diocesan
bishop submitting three names for auxiliary bishop (c. 377§4), or a religious
superior presenting candidates for a diocesan office such as pastor (c.
682§1).
The first rule here is that presentation is made to the person
competent to confer the office (cf. c. 148). Presentation gives the candidate
no right to the office, but does limit the competent authority to considering
only the candidate(s) presented.
The second rule is that presentation must be made within three
months of notice of vacancy. Exceptions must be “legitimate”; i.e. by law or
custom. The law permits an additional month if the candidate refuses (c.
61). There is no time limit set for installing (conferring) the office by
competent authority, but failure to act after three months gives rise to the
situation in canon 57.
The third rule in the canon applies to groups which have the right to
present; they are to select the candidate as if it were an election, although
the one thus chosen does not acquire any right to the office, since it is a
presentation. No norm is given for how an individual is to select a candidate,
but particular law, the law of foundation, or the statutes can require
consultations and other processes.

3. Election followed by confirmation or admission.

Through election, an electoral body selects the candidate for an office.
The elected person obtains the office either by accepting the election, if no
confirmation is needed, or by being confirmed by a competent authority.
60
The election of the pope is the clearest example. His election by the
college of cardinals requires no confirmation, only his acceptance (cc. 147,
176-178).

4. Postulation.
Postulation is a vote by an electoral body for a candidate who is known
to be canonically impeded from an office. A competent authority must
determine whether to admit the postulation and grant a dispensation from
the impediment. The postulated candidate receives the office upon
acceptance after dispensation.
Postulation means that the electors request a higher authority to
dispense from an impediment which stands in the way of their electing the
person they feel is best suited, e.g., the person is too young, or has already
served the maximum number of terms. At least two-thirds of the group must
vote to postulate. The favorable response of the authority is called the
admission of the postulation (cc. 147, 180-183).

Loss of Office. Ecclesiastical offices may be lost in seven ways:

An office is constituted in a stable manner. It is conferred, however,

with varying degrees of stability for the officeholder. In addition to death,
which is not listed in the code, there are various other ways by which office
can be lost, all involving some intervention of a competent authority. Thus
office is never to be lost without at least those who have the responsibility to
fill it being notified.
An ecclesiastical office is lost by the lapse of a predetermined time, by
reaching the age determined by law, by resignation, by transfer, by removal,
and by privation. (c. 184)
Loss of office by the lapse of a predetermined time or by the reaching
of a certain age takes effect only from the moment when the competent
authority communicates it in writing. (c. 186)

1. Resignation
Resignation is a request initiated by an officeholder to leave the office.
If no confirmation was required to obtain the office, resignation consists in
notifying those responsible for providing for the office. Otherwise, it must be
submitted to a competent authority and does not become effective until that
authority gives notice of acceptance in writing.
Anyone responsible for oneself can resign from an ecclesiastical office
for a just cause. (c. 187)
To be valid, a resignation, whether it requires acceptance or not, must
be made to the authority to whom it pertains to make provision of the office
in question; this must be done in writing, or orally in the presence of two
witnesses. The authority is not to accept a resignation which is not based on
a just and proportionate cause. (c. 189§1-2)
If no acceptance is needed, resignation must be communicated to the
authority competent to make provision (e.g., college of cardinals for the
pope, college of consultors for diocesan administrator). The resignation
 61
takes effect immediately upon its legitimate communication to the
competent authority, although its effect may be suspended until the one
resigning specifies when it is to take effect if this condition was made in the
resignation itself (e.g. “I will resign effective noon tomorrow”).
If acceptance is needed, the effect of the resignation is determined by
the competent authority. In addition to receiving proper written or oral
communication of the resignation, the authority must also judge whether the
person acted freely and responsibly, and whether the cause is just and
sufficient to warrant resignation.
If the competent authority does not act within three months, the
answer is considered to be negative (cf. c.189,§3). Recourse can then be
taken if the person seeking to resign so decides.

2. Transfer
Transfer is initiated by the competent authority and results in the
vacancy of one office and the provision of another. It need not necessarily
carry a negative connotation, but it can be imposed as a penalty (c.
1336§1,4°)
A transfer can be made only by a person who has the right of providing
for the office which is lost as well as for the office which is conferred.
If the officeholder is willing, a just cause is still required for a transfer.
It can be for the common good, the service of the Church, or the good of the
officeholder personally. No formalities are stated in the code, other than that
the transfer be made in writing. Particular law could provide additional
procedures.
If the officeholder is unwilling, a grave cause is required. The
competent authority is the judge of the gravity of the cause, in light of the
offices involved and the circumstances; these should be expressed in writing
for the eventuality of a recourse against the transfer. Moreover, the
procedure prescribed by law is to be observed. A specific procedure is
provided in the code only for the transfer of pastors (cc. 1748-1752) and for
transfer as a penalty (penal law must be followed); proper law is to provide
for the transfer of superiors (c. 624§3). Particular law could provide other
procedures, but must always provide for the officeholder to propose
arguments against the transfer. If the officeholder is under contract, the
terms of the contract must be respected. All other transfers are at least
subject to the procedures of canons 50-51, since a transfer is expressed in a
decree.
A decree of transfer must be communicated in writing to take effect; it
is subject to recourse, which suspends its effect.

3. Removal
Removal results in loss of office; it differs from transfer in that, of itself,
it does not include provision with another office. It carries the connotation
that the officeholder is not conducting the office properly, although not
necessarily due to a delict.
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Removal can be initiated by competent authority (cc. 192-193), or it
can be in virtue of the law itself (c. 194). The law is also sensitive to issues
of support.
The authority competent to remove is the authority competent to
provide for the office. If a contract is involved, its provisions must be
respected in addition to the causes and procedures specified in c. 193. The
terms of the contract are to be interpreted in keeping with the applicable
civil law on contracts (cf. c. 1290). Moreover, third parties (in addition to the
officeholder) may have acquired rights through the contract and these must
be respected as well.
The following are removed from an ecclesiastical office by the law
itself: (1) a person who has lost the clerical state; (2) a person who has
publicly defected from the Catholic faith or from the communion of the
church; (3) a cleric who has attempted marriage even if only civilly. The
removal mentioned in 2 and 3 can be enforced only if it is established by the
declaration of a competent authority. (c. 194)
For all three situations, competent authority must intervene. The
clerical state is lost by declaration of invalidity of orders, imposition of the
penalty of dismissal, or dispensation (c. 290); competent authority must act
for each of these.
In the other two situations of canon 194, competent authority declares
the removal. These both involve delicts by the officeholder, and removal
here has the effect of a penalty. The canon is an exception to penal law, for
removal from office is a permanent expiatory penalty (cf. 1336§1,-2).
Nevertheless, competent authority must determine the facts in the case and
provide the officeholder with an opportunity to be heard (cf. c. 50) before
issuing the decree containing the reasons for removal and communicating
this to the officeholder (cf. c. 51).

4. Privation
Privation is penal removal from office, one of the expiatory penalties
(cf. 1336§1-2). It can be imposed only if a delict has been committed and is
imputable to the officeholder. The provisions of this canon assure due
process protection for the officeholder, as well as a means to safeguard the
welfare of the community and the common good.
The procedures for penal law must be followed (cf. cc. 1341-1353,
1717-1728). Thus, as a permanent penalty it cannot be imposed by an
administrative decree (cf. 1342§2) but requires a judicial process. Privation
cannot be imposed where the law states simply a “just penalty,” for it is one
of the graver penalties. However, particular law could further specify
privation as a penalty where the code lists a “just penalty,” although only for
very grave necessity (cf. c. 1315§3). Privation cannot be imposed latae
sententiae (cf. c. 1336§2), and can be imposed only if the office is subject to
the superior who decrees the penalty (cf. c. 1338§1).

C. Prescription
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Prescription is a means of acquiring or losing rights, or of freeing
oneself from obligations, by the passage of time under conditions prescribed
by law. Derived from classical Roman law and further developed under
Justinian, prescription is found virtually in all legal systems in the western
tradition, including the law of the Church. It is grounded on societal needs
for the peace and good order that ensue from bringing closure to disputes,
precluding prolonged uncertainty of ownership, curing transactional defects
flowing from failure to fulfill formalities, avoiding the bringing of stale claims
after witnesses and relevant documentary evidence are not longer available,
and encouraging social and economic development and productivity by
removing fears of future litigation.
While the code uses the sole term “prescription,” canonists generally
distinguish acquisitive prescription (the acquisition of rights, especially
ownership of temporal goods), from liberative or extinctive prescription (the
freeing of oneself of an obligation). Civil laws employ a variety of terms.
In acknowledging the acceptance by the Church of prescription as
found in the applicable civil law, canon 197 effectively “canonizes” the local
civil law on the matter except where other canons in the code provide
otherwise.
Exceptions to the canonization of civil laws regarding prescription
relate to the requirement of good faith (cf. c. 198), matters considered by
the Church to be totally exempt from prescription (cf. cc. 199 1°-6°; 1492§1)
or partially exempt (cf. cc. 82; 199 7°; 1269), and the length of time which
must pass before some forms of acquisitive prescription become effective
(cf. cc. 1362, 1363, 1621).
It has never been the purpose of prescription to reward unethical
behavior such as theft or the wrestling o f rights or release from obligations
by violent means. Good faith has always been an essential element. The
extent of required good faith, however, has varied among legal systems.
Roman law, both classical and imperial, required good faith only at the
beginning of the running of the time of prescription; a good faith purchases
or recipient of a gift, for example, was not deprived of the benefits of
prescription upon subsequently learning that the property in question had
previously been stolen or otherwise misappropriated. The Church, however,
at least since the Fourth Lateran Council, has required good faith throughout
the entire running of the prescribed time, both for acquisitive and liberative
prescription. Moreover, the Church requires positive good faith, that is, a
judgment (even though erroneous) that one possesses property, or exercises
a right, or withholds payment of a debt or fulfillment of other obligations
justly, that is, without violating any right of another. One who acts in good
conscience acts in good faith.
The following are not subject to prescription (c. 199)
1° rights and obligations which are of the divine natural or positive law;
2° rights which can be obtained from apostolic privilege alone;
3° rights and obligations which directly regard the spiritual life of the
Christian faithful;
4° the certain and undoubted boundaries of ecclesiastical territories;
5° Mass offerings and obligations;
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6° provision of an ecclesiastical office which, according to the norm of
law, requires the exercise of a sacred order;
7° the right of visitation and the obligation of obedience, in such a way
that the Christian faithful cannot be visited by any ecclesiastical
authority or are no longer subject to any authority.

D. The Computation of Time

The manner in which precise moments or periods of time are

calculated often has serious consequences for persons subject to the law of
the Church. The acquisition, duration, and expiration of many canonical
rights and obligations depend upon particular measurements of time, as
does eligibility for the reception of sacraments, religious profession, and
election or appointment to office, and the validity of numerous juridic acts,
especially procedural ones. It was said that over three hundred canons in
the 1917 code involved some mention of time, and the same has been said
of almost two hundred canons in the present code. The final four canons of
Book I set forth general norms for the computation of time in matters of
canonical significance. The norms, which are intended to minimize
ambiguity and afford as much juridical certainty as possible, are greatly
simplified from those in the corresponding canons of the 1917 code, and are
virtually the same as those in the Code of Canons of the Eastern Churches.
Canon 201 introduces a fundamental canonical distinction between
continuous time (tempus continuum) and useful or available time (tempus
utile). Continuous time is the ordinary, moment-by-moment passage of time
which undergoes not interruption as, for example, aging. Useful time is that
which is available for the exercise or pursuit of a right and which does not
run in instances of unawareness of the right or of the beginning of the time
limit for its exercise, or in instances of inability to act due, for example, to
illness. Unawareness, which can be due to ignorance or error, usually
interrupts tempus utile, most often intervenes to halt the running of the
designated period of time after it has begun.
In law, a day is understood as a period consisting of 24 hours and
begins at midnight unless other provision is expressly made; a week is a
period of 7 days; a month is a period of 30 days, and a year is a period of
365 days unless a month and a year are said to be taken as they are in the
calendar. If time is continuous, a month and a year must always be taken as
they are in the calendar. (c. 202)
A month computed as tempus utile, always consists of 30 unimpeded
days, which, depending upon the number of canonically significant
interruptions could last more than 30 calendar days. Similarly, a year
computed as tempus utile always consists of 365 unimpeded days which
could last more than 365 calendar days depending upon the number of
canonically significant interruptions.
The initial day (a quo) is not computed in the total unless its beginning
coincides with the beginning of the day or the law expressly provides
otherwise. Unless the contrary is established, the final day (ad quem) is
computed in the total which, if the time consists of one or more months or
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years, or one or more weeks, is reached at the end of the last day of the
same number or, if a month lacks a day of the same number, at the end of
the last day of the month. (c. 203)
Unless expressly provided otherwise, the entire final day (the terminus
ad quem) is counted so that the interval of time is not completed until
midnight at the end of the final day of the designated interval. This general
norm also applies both to continuous time and to tempus utile.
One’s actual day of birth, therefore, is not counted in the computation
of one’s age (unless one were born precisely at midnight), and one does not
complete a year of age until midnight at the close of one’s birthday.
Consequently, one cannot licitly be ordained to the priesthood until the day
following one’s twenty-fifth birthday, since the law requires completion of
twenty five years of age (cf. c. 1031§1).
So, too, in the computation of tempus utile as for example, in
computing the ten days within which one may take recourse against
rejection of a libellus (cf. c. 1505§4), the day of rejection (terminus a quo) is
not counted, and the period of ten unimpeded days begins at midnight at the
close of that day; the ten-day period will expire at midnight at the end of the
tenth unimpeded day.
Canon 203§1 also makes explicit what is implicit in canon 202, namely,
that weeks, months, and years computed not as tempus utile but
continuously, which is usually the case, expire at midnight at the end of the
corresponding day of the final week or corresponding date of the final
month. A three-week period of continuous time beginning on a Wednesday
(i.e. according to c. 203§1, at midnight at the end of a Wednesday), for
example, will expire at midnight at the end of the third ensuing Wednesday.
A three-month period of continuous time beginning on November 15 will
expire at midnight at the end of February 15. If however, the final month
does not have a corresponding date (as e.g., when a three-month period
begins on November 30), the terminus ad quem is considered to have been
reached at midnight at the end of the last calendar day in the final month of
the designated interval. (e.g. in a three-month period beginning on
November 30, ending on February 28 or, in a leap year, on February 29)
Tempus utile, on the other hand, is always computed without regard to
the calendar. One month of tempus utile beginning on January 31, for
example will not, under any circumstances, expire on February 28; thirty
unimpeded days must pass before the one month of tempus utile will expire.