CHAPTER II: ON THE AUTHOR OF LAW OR ON THE LEGISLATOR

101. • A legislator is called a Superior in whom there is power, either independent and supreme, or subordinate, of making laws for a community over which he has jurisdiction.

Principles. - I. God alone is the supreme and universal legislator, from whom necessarily the other legislators, whoever they may be, receive all their power, either immediately or mediately. For God is the highest and essential rule of any order whatsoever, and he alone enjoys supreme dominion over rational creatures, of whom he is the principle and the ultimate end. - It is established also from Scripture: By me kings reign, and lawgivers decree just things; by me princes rule, and the powerful decree justice.¹ - There is no power except from God.²

II. The Church has power to establish laws which conduce to the end proposed to itself. See the principle proved among the writers of Dogmatic Theology.

III. The civil power can establish laws which conduce to the end of temporal happiness.

It is established 1° from Sacred Scripture: By me kings reign, and lawgivers decree just things.³ Be subject, whether to the king as preeminent, or to governors as sent by him.⁴

It is established 2° from reason. For law, or an ordinance for the common good, is the necessary means for conserving and promoting the end of the civil Community, or its temporal happiness; therefore the faculty of employing that means, or the power of making laws, must be in him who must have care of the community (n. 100, 3°).

IV. One must always obey legitimate Superiors commanding something by a just law, whether you think that they received authority immediately from God, or through the mediation of the people. - The reason is that in either sentence they are equally placed over society to be governed by God, and therefore they have authority received from him. Hence the controversy whether secular Princes have power from God mediately or immediately is of no moment in practice. (1) p. 484. I said: commanding something by a just law, etc. But a law must be judged just as often as its injustice is not commonly established among learned and upright men, because right order requires that in doubt presumption favor the Superior.

102. Questions. - Quaer. 1° Who in the Church have the faculty of establishing laws?

Resp. 1° The Pope, for the whole Church.

2° A general Council, likewise for the whole Church.

3° Bishops for their own dioceses, and Abbots and exempt Prelates for their own territory. Nevertheless, their ordinances are judged to be precepts only, not laws, unless either a) they have been made in a diocesan Synod, or b) indeed outside it, but the chapter having been heard, and also consenting, if the matters concern things which would fall to the prejudice of the chapter or clergy, that is, to the violation of an already acquired right.¹ But where as yet no Chapters exist, as among us, or where the right of the Chapter has been abrogated by contrary custom, the Bishop is not bound, as is clear in itself, to hear it. Besides, all those things which pertain to the correction of morals or to reforming discipline can be sanctioned even with the Clergy not having been heard, although it is equitable and consonant with right to seek their opinion if the space of time and the reason of deliberating the business permit. Thus the Pref. C. de P. F. to the Bishop of Quebec, Nov. 20, 1792. - But Archbishops and Patriarchs cannot make laws for the dioceses of suffragans, because they are not their Superiors properly so called, although they can settle disputes brought from them to themselves.

But neither Bishop, nor Archbishop, nor Patriarch can give laws or precepts contrary either to the general custom of the whole Church, which has the force of common right, or to laws made by a power superior to himself, since an inferior does not have jurisdiction over a superior.

4° Particular Councils, for the dioceses which they represent. For if Bishops taken separately are able to establish laws for dioceses, likewise also in a Council, whether national or provincial, they will be able to constitute laws for the nation or province. Nevertheless the decrees of Provincial and National Councils must be sent to the Sacred Congregation of the Council of Trent, so that they may be recognized. Thus from ancient law confirmed by Sixtus V in the Bull Immensa aeterni. - "Not seldom, however," says Benedict XIV,² "has it happened that provincial [councils] . . . are confirmed by apostolic letters." But confirmation of Synods by the Apostolic See can be made in two ways, to be carefully distinguished: namely in common form, or in specific form. Statutes are said to be confirmed in common form when they are not examined one by one, nor approved by the Pontiff by his own motion and from certain knowledge . . . and such confirmation gives those statutes nothing of new right or efficacy. Confirmation is said to be made in specific form when cognizance of the cause is premised, and each statute is diligently weighed, and then, with no condition added, they are confirmed by Apostolic authority with the clause, by his own motion and from certain knowledge. . . . When a statute has been confirmed in specific form, since it has put on the nature of pontifical law, it is lawful for no inferior to derogate from it; indeed, from this confirmation it receives such great force that it prevails over the common right to which it would be contrary. Thus Benedict XIV.¹

103. • Quaer. 2° Can the Cathedral Chapter, while the See is vacant, the Prelates of Regulars, and Abbesses, or Superiors of Nuns, establish laws?

Resp. 1° The Chapter, while the See is vacant, can innovate or abrogate nothing, but must govern the diocese according to existing laws.² Nevertheless it could make statutes which would be necessary for the circumstances. In place of the Chapter in this matter among us is the administrator of the diocese.³

Resp. 2° Prelates of Regulars are able to establish true laws, whether in a general Congregation of the Order, or in another way within the limits of their jurisdiction according to the proper constitutions of the Order. For they have statutes approved by the Supreme Pontiff, which give this faculty to them.

Resp. 3° Abbesses or Superiors of Nuns cannot make laws properly so called, since they do not have ecclesiastical jurisdiction. They can, however, exact obedience in conscience concerning things prescribed in the rule, or concerning those things which conduce to the progress of the nuns, according to the rules. For they have the right of commanding both from the vow of obedience emitted by the subjects and from the necessity of discipline which must be preserved in the community.

Note: Concerning the author of civil law it will be treated below.