First Article. On The Author Of Human Law

127. Necessary power. 1. In a human legislator, two things are required for duly establishing law: a. jurisdiction, or the power of ruling as subjects those upon whom the law is imposed; b. power over that particular matter concerning which the law is concerned, which power they call competence. For a human legislator, possessing legitimate authority, can command only those things which conduce to the end of the community over which he presides, provided that they are not opposed to higher laws.

a. Jurisdiction taken broadly signifies the power of governing. But this is either private (domestic) power of governing, or the power of governing a person or a family (an imperfect society), and is called dominative power; or it is public (political) power of governing, or the power of governing a state or commonwealth (a perfect society), and is called power of jurisdiction, or jurisdiction taken strictly.¹ Now for making laws dominative power does not suffice, but the power of jurisdiction is required, and indeed supreme jurisdiction: not only that which is found in a judge for declaring the law, but that which exists in a king and prince for governing the whole state.

b. Dominative power, which suffices for giving precepts but in no way for establishing laws, is twofold according to its diverse origin: social and simply dominative. For either it arises naturally from any society, however small. Since every society must necessarily be ruled, the reason of order requires that there be in it a superior and subjects who are subjected to him. Therefore everyone who is born in some society or is aggregated to it is, by this very fact, held to obey its social authority. This power is in a father with respect to his child, in a husband with respect to his wife, in a master with respect to a servant. Or it arises from the vow of obedience, by which the one vowing promises to submit himself to his superior. This dominative power is in a regular superior with respect to subjects. Hence it is clear that in a regular superior there is had both power, social and dominative, and therefore in him is found true power of commanding and of obliging in conscience independently of the vow of obedience.²

2. For the twofold perfect community of men, ecclesiastical and civil, a twofold legislative power must also be distinguished, ecclesiastical and civil. We chiefly treat of ecclesiastical law.

1. On Ecclesiastical Jurisdiction³

¹ The word jurisdiction, which of itself signifies the whole power of ruling, sometimes in a stricter sense designates only judicial power. In this sense the name jurisdiction is used in the treatise on the judge and on penance.

² Cf. Suarez, De legibus, l. 1, c. 8.

³ Cf. Wernz, Ius decretalium II, n. 2 ff., 551 ff.

128. Notion and division. 1. Ecclesiastical jurisdiction is the power of ruling the faithful in order to eternal salvation, granted to someone by Christ or by the Church.

Ecclesiastical jurisdiction is distinguished from civil jurisdiction, which is the power of ruling citizens in order to the common temporal good. The latter is exercised only in the external forum; the former in the external and internal forum.

2. Jurisdiction is divided: a. into proper, which is exercised in one's own name, and vicarious, which is exercised in another's name.

Thus the supreme pontiff exercises proper jurisdiction when he makes laws, dispenses in laws made by himself, and excommunicates delinquent faithful; but he exercises vicarious jurisdiction when he dispenses in vows, oaths, and ratified marriage, because by a special commission of God he acts in the name of God. In like manner a bishop exercises proper jurisdiction if he makes law and dispenses in his own law; but he exercises vicarious jurisdiction if he dispenses in another's law, for example in a universal law of the Church.

b. Into ordinary, which belongs to someone by force of his proper office, and delegated, which belongs to someone from the special commission of one who has ordinary jurisdiction.

a. Ordinary jurisdiction is of two kinds: one which flows from the office itself, another which is habitually annexed to the office. The former is called simply ordinary; the latter by some ordinary, but by others quasi-ordinary.

b. Ordinary jurisdiction is granted with the office itself; quasi-ordinary jurisdiction can be acquired in three ways: from man, that is, through concession of the supreme prince; from law or canon; from legitimately prescribed custom.

c. All delegated jurisdiction is vicarious, because it is exercised in another's name; but not all vicarious jurisdiction is delegated, nor is all ordinary jurisdiction proper. For all jurisdiction of the supreme pontiff is ordinary, since it flows from his office, but not all his jurisdiction is proper. Likewise ordinary jurisdiction of a bishop is proper, because it is exercised in his own name; but quasi-ordinary jurisdiction is vicarious, because it is exercised in another's name.

c. Into voluntary jurisdiction, which is exercised without judicial form and therefore always upon willing persons, as happens in absolution and dispensation; and contentious jurisdiction, which is exercised in judicial form and therefore even upon the unwilling, as if an accused person is called into court and punished.

Voluntary jurisdiction is exercised validly and for the most part also licitly even outside one's proper territory, because for its exercise the noise or process of a trial is not required; but contentious jurisdiction cannot be exercised outside one's proper territory without the consent of the judge of that place and of the contending parties.

d. Into jurisdiction of the internal forum, which primarily and directly regards private good and orders the moral relations of the faithful to God; and jurisdiction of the external forum, which primarily and directly is referred to the common good and orders the relations of the faithful to the Church, a visible society.

e. Jurisdiction of the internal forum is twofold: sacramental or penitential, which is exercised in the administration of the sacrament of penance; and extrasacramental or extrapenitential, which is exercised outside the sacrament of penance.

129. Principles. 1. One who has ordinary jurisdiction can per se delegate it to another; but one who has delegated jurisdiction cannot subdelegate it to another, except in a threefold case:

a. If he has been delegated without restriction by the supreme pontiff, and this by privilege of law granted because of the eminence of the supreme power.¹

Therefore a bishop can delegate to others, both in a general way and for a particular case, faculties delegated to him for a time by the Apostolic See, without special concession.²

b. If he has been delegated for a universality of causes.

One is called delegated for a universality of causes who has received power not only of dispatching one or several particular causes, but either simply all causes or all causes in some certain genus, for example all matrimonial causes.

c. If he has received a special concession of subdelegating.

2. In order that a delegate can validly use the delegation granted to him, he must know and accept it. There are indeed canonists who deny that knowledge and acceptance of delegation are necessary, especially if the one delegating is the superior of the delegate, or if the delegation has been granted by general statute. Nevertheless, authors commonly affirm that this is necessary in every case.

3. Delegated power does not expire by the death of the one delegating (or by loss of office, in whatever way this happens) if it is a grace granted, but it expires if it is a grace to be granted while the matter is still intact. This is established from the disposition of law³ and from reason, because through a grace granted, either the thing itself or a right to the thing to be received by the delegate is acquired; but through a grace to be granted, no right is acquired.

a. The distinction between a grace granted and a grace to be granted is taken from the mode in which the grace is conceded. It is called a grace granted if it is conceded by the superior himself per se, whether by way of habit or by way of act, or indeed through another but as a necessary executor; and it is called a grace to be granted if it is conceded through another as a voluntary executor.

b. The matter is called intact if the delegate has not yet begun to use his power; and it is said not to be intact if he has already begun to use his power.

But if the committed power is completed by a single act, as in absolution from reserved cases, by the first absolution the delegate begins to use his power; if the committed power is completed by several acts, as in dispensation from an impediment of marriage, when the petitions must be verified, he begins to use his power by the first act pertaining to that dispensation (the citation of the spouses).

¹ C. Si pro debilitate 3, De officio iudicis delegati (I, 29).

² Holy Office, December 17, 1898.

³ CC. Si cui 36, De praebendis (III, 4) in 6; Si super 9, De officio iudicis delegati (I, 14) in 6.

130. a. Grace or faculty can be delegated by a superior in two ways: by way of habit, if it is granted generally for all who need it or will seek it, such as the faculty of dispensing in some law, the faculty of hearing confessions, of absolving from reserved cases or censures; by way of act, if it is granted for one or another case with respect to a determinate person in his favor.

b. A superior can grant a grace conceded by way of act in three diverse ways:

a. Either he himself grants it per se to the petitioner (although sometimes it must be communicated through the ministry of another), as if he himself immediately dispenses with a subject, or if he grants to someone permission to receive orders (of course through the ministry of the ordaining bishop).

b. Or he grants the grace through another, to whom he commits it to be granted, and indeed in such a way that he commands execution to him (a necessary executor), as if the supreme pontiff writes back in this or a similar form: absolve the petitioner from reserved cases, dispense Titius from irregularity, from an impediment, from such a vow, etc.

c. Or he grants the grace through another, to whom he commits it to be granted, but in such a way that he commits the whole matter to his judgment (a voluntary executor), as if the supreme pontiff writes back in this or a similar form: dispense, absolve Titius, if you shall have judged it expedient; or if a bishop remits the petitions with necessary and opportune faculties.¹

c. A grace granted by the superior himself per se, whether by way of habit or by way of act, is a grace granted to him to whom it is immediately granted by the superior; a grace granted through another as necessary executor is a grace granted to him for whom it is granted. Thus power granted to a pastor of dispensing Titius is a grace granted to Titius.

2. On Human Legislators

¹ Cf. Suarez, De legibus, l. 8, c. 31. Pirhing, t. I, l. 1, tit. 29, sect. 7. D'Annibale, Summula theologiae moralis, 5th ed. (Rome: Desclee, 1908), I, n. 222.

131. In the Church, laws can be made by: 1. The Roman Pontiff for the universal Church, who receives power immediately from Christ: for Christ the Lord conferred upon blessed Peter and his legitimate successors the power of ruling the universal Church: "I will give thee the keys of the kingdom of heaven";¹ "Feed My sheep."²

The supreme pontiff exercises legislative power in a threefold way:

a. By issuing a constitution, by which a universal law is made and promulgated.

b. By making a particular law for some province or for a religious order.

c. By issuing decrees or laws through the Roman congregations, which he confirms by his supreme authority.

As regards the force of law and obligation, it makes no difference in what way the pontiff establishes the law, nor does it matter whether he commands something through a bull or through a brief or by another decree.

2. An ecumenical council for the whole Church, if it has been legitimately convoked, celebrated, and confirmed by the Roman Pontiff; a national or plenary council for the whole territory of some nation; a provincial council for an ecclesiastical province. Nevertheless, before the decrees of a national or provincial council are promulgated, they must be reviewed at Rome by the Sacred Congregation of the Council, so that they can be corrected if perhaps they contain something less fitting;³ this recognition or revision does not give greater force and authority to synodal decrees.

To the question whether bishops legitimately gathered in a council, whether plenary or provincial, possess true legislative power, the Holy Office on September 30, 1896, responded affirmatively. Therefore their decrees have the force of law, even if they have not been inserted into diocesan statutes. Nevertheless bishops are inferior to a provincial council; therefore they per se are held to observe its laws and statutes. Likewise they cannot dispense in its laws or statutes by their own authority if dispensation was reserved, but dispensation must be sought from the Holy See. But when dispensation is not reserved (ordinarily it is not customarily reserved), the faculty is presumed given to the bishops of dispensing each for his own diocese.⁴

3. The bishop for his own diocese, whether in a diocesan synod or outside a synod, who receives legislative power from the supreme pontiff. Here also belong abbots or prelates nullius (namely, of no diocese), who have power over clergy and people, and the cathedral chapter when the see is vacant, or rather the capitular vicar, who can make and abrogate laws: for he succeeds to the jurisdiction of the bishop; but legislative power is annexed to this jurisdiction.

a. Decrees issued and promulgated by the bishop in synod have the character of true law; but statutes issued and promulgated outside a synod have the character of stable law only in a twofold case: a. if the bishop himself declares that he wishes to establish stable law; b. if the ordinance affects all subjects, both clerics and laity.⁵

b. Since bishops truly possess legislative power, they can by ecclesiastical law command whatever they have judged opportune for the good of souls and their right governance, provided that it is not opposed to common law. And since law, lest it be useless and ineffective, must be furnished with sanction, they can also add penalties to their laws.⁶

4. A general chapter or general congregation in religious orders, by force of jurisdiction granted by the supreme pontiff. The power which belongs to general superiors themselves is indeed diverse according to the statutes of the orders; but ordinarily they do not themselves have the power of making laws, but only of establishing ordinances or statutes either according to or besides the laws in force. Finally, local superiors by force of jurisdiction can command, and their precepts per se expire by the death or departure of the one commanding, unless special stability has been attributed to them through legislative power.⁷

a. Abbesses or superioresses in women's religious orders cannot make laws. The power of making laws for women religious, besides the supreme pontiff, belongs to the superiors of men's orders to which the women's order is annexed, or to the bishop in whose diocese the monastery is situated. Nevertheless superioresses can in particular cases and for particular persons command under grave or light obligation those things which pertain to the spiritual progress of the nuns or to regular discipline according to (not besides) the rules and constitutions of the order, not by force of jurisdiction, which they do not have and cannot receive, but by force of the vow of obedience which professed nuns emit, and by force of dominative power, which by natural law belongs to all superiors of any community. By force of this power they can also command novices who have not emitted the vow of obedience.

b. The distinction between a precept which is made by force of jurisdiction and a precept which is made by force of dominative power must be noted: one who violates the latter sins only against obedience; one who violates the former sins against the virtue to which the precept is referred. For dominative power regards only the subjection of the subject, whatever be the matter on which it is exercised; but jurisdiction regards the good to be obtained through observance of the precept in such a matter.⁸

¹ Matt. 16:19.

² John 21:17.

³ Constitution Immensa of Sixtus V, January 22, 1588. Cf. Benedict XIV, De synodo, l. 13, c. 3, n. 1 ff.

⁴ Bonacina, De legibus, disp. 1, q. 2, punct. 1, n. 14.

⁵ Cf. Benedict XIV, De synodo, l. 13, c. 5, n. 1. Ballerini-Palmieri I, n. 238, note a.

⁶ Cf. S.C.C., September 20, 1878.

⁷ Lacroix, l. 1, n. 566.

⁸ Cf. De praeceptis, n. 280, 4.

132. On civil legislative power. 1. Just as civil society itself, so its supreme power is derived from the will of the author of nature: "There is no power except from God."¹ From its proper office it must care by its laws for the common good, or the temporal happiness of citizens, such as can be obtained in this life. In order that it may attain this end, it must establish laws of two kinds: laws by which vices are restrained and the exercise of moral virtues, especially justice, is commanded; for temporal beatitude is impossible without the exercise of moral virtues. And laws by which a sufficient abundance of external goods is procured; for a certain abundance of external goods is required for the exercise of virtues.

2. Who in civil society possesses legislative power depends upon the form of government, which today is diverse in diverse kingdoms: for in some, the supreme prince alone can make laws; in others, legislative power resides in the supreme prince and in the legislative body, which again is diverse according to the diverse constitutions of peoples.

Legislative power per se also belongs to a queen, an heir of the kingdom by succession: for in order that someone have legislative power it is required that he be capable of jurisdiction and that he exercise supreme power in some community; but a queen is capable of civil jurisdiction. A woman is not indeed capable of spiritual jurisdiction, because this jurisdiction requires a subject capable of order; but nothing prevents a woman from receiving civil jurisdiction.²

3. On The Authority Of The Roman Congregations

¹ Rom. 13:1.

² Cf. Holzmann, Theologia moralis I, n. 292.

133. On the Roman congregations themselves. The congregations through which the supreme pontiff establishes laws and decrees and grants decisions and declarations for proposed doubts are the following seven:¹

1. The Congregation of the Holy Office, whose president is the supreme pontiff himself, takes cognizance of causes which pertain to faith and judges concerning heresy and concerning crimes which arouse suspicion of heresy. Besides this, the whole matter concerning indulgences has been committed to it, both as to doctrine and as to use; and finally it treats those matters which concern the Pauline privilege and the impediments of disparity of cult and mixed religion.

2. The Congregation concerning the Discipline of the Sacraments treats all things which pertain to the discipline of the sacraments. Therefore dispensations of marriages for the external forum, likewise dispensations from a ratified non-consummated marriage, dispensations from irregularities, faculties of reserving the most holy sacrament, dispensations which regard Holy Communion or the sacrifice of the Mass, etc., are henceforth granted by this congregation.

3. The Congregation of the Council, to whose business belongs the whole discipline of the secular clergy and of the Christian people. For this reason it must take care that the precepts of the Church be observed, such as fasting, abstinence, and feast days, with the power of dispensing in these laws. To it belong those things which concern pious sodalities, pious legacies, stipends of Masses, benefices, and ecclesiastical goods. Finally it judges concerning all things which pertain to ecclesiastical immunity.

4. The Congregation of Religious (placed over the affairs of religious members), to which are referred those things which pertain to the governance of religious orders, both of solemn and of simple vows. It also settles controversies which arise both between bishops and regulars and between regulars themselves and religious families. Finally, it grants dispensations from common law to religious.

5. The Congregation for the Propagation of the Faith exercises jurisdiction in mission regions and has the right and power of treating all business of the missions. Nevertheless it must defer to other particular congregations those matters which touch either faith or marriages or sacred rites. Those things which pertain to religious as missionaries this congregation treats; but those things which pertain to them as religious are to be remitted to the Congregation of Religious.

6. The Congregation of the Index must watch lest anything be propagated among the faithful by published books which may harm faith and good morals. For this reason it must diligently examine books denounced to it and, if it is necessary, condemn them; it must inquire opportunely into writings of any kind to be condemned; and it must warn ordinaries that they themselves either condemn pernicious writings or denounce them to the Holy See according to the norm of the constitution Officiorum (January 25, 1897).

7. The Congregation of Sacred Rites decrees all those things which concern the sacred rites and ceremonies of the Latin Church. Therefore it watches that rites and ceremonies be diligently observed in offering the sacred rite, in administering the sacraments, in discharging the divine offices, etc. It grants opportune dispensations. Finally, it must execute all those things which are referred to the beatification and canonization of saints or to sacred relics.

To these must be added the Sacred Apostolic Penitentiary: for since this tribunal has power of resolving doubts which concern the forum of penance, its responses must often be cited in moral theology.

¹ Cf. Constitution Sapienti consilio of Pius X, June 29, 1908.

134. Declarations. a. In this place the discussion is not of doctrinal decrees, but only of disciplinary decrees, which in the matter of morals either establish a new law, or interpret a law already existing, or declare law in particular causes, or grant a grace.

b. Decrees of the Roman congregations are signified by various names and are called declarations, decisions, resolutions, responses, or decrees. Although in the strict sense decrees contain a new law, but declarations an interpretation of a law already constituted, and resolutions or decisions a judicial sentence in a particular cause, nevertheless these names are ordinarily used indiscriminately.¹

c. The power which belongs to the sacred congregations has been granted to them by the supreme pontiff, who nevertheless has not conferred equal power upon all. For the Sacred Congregation of Rites has legislative power, so that even without a special mandate and approval of the supreme pontiff it can establish general decrees having the force of universal law.² But the other congregations do not have legislative power, not even the Congregation for the Propagation of the Faith for mission regions.

d. Since the other congregations besides the Sacred Congregation of Rites lack legislative power, their decrees do not have the force of universal law unless they have been issued by mandate of the supreme pontiff and confirmed by him with special approval. But each congregation can establish particular decrees concerning the object committed to it. Today these decrees are customarily approved by the supreme pontiff in common form; nevertheless they do not seem to need this approval in order to exercise their force, for the congregations have been instituted and furnished with the necessary power for dispatching certain business.

e. A twofold approval is distinguished: in specific form, by which decrees are absolutely confirmed after diligent examination; and in common form, by which decrees are not subjected to rigorous examination and are confirmed only conditionally (if they are not repugnant to the sacred canons).

This latter approval does not change the nature of the decrees, but leaves them in their own species, namely decrees which the congregation establishes in its own name and by its own authority; therefore it attributes only a certain external authority to it. The former changes the decree into a law of the supreme pontiff, which he establishes in his own name and by his own authority.

f. In order that decrees of the sacred congregations have the force of obliging, they must be authentic; but they are recognized as authentic by the fact that they have been formally issued, that is, subscribed by the prefect and secretary of the congregation and furnished with the seal of the congregation. The authenticity of decrees of the sacred congregations can be established for us either from authentic collections³ or from the report of trustworthy writers.

¹ Cf. Wernz, I, n. 143.

² Sixtus V, establishing this congregation by the constitution Immensa of January 22, 1588, conferred legislative power upon it; the congregation itself declared that its decrees formally issued have the same authority as if they proceeded immediately from the supreme pontiff himself (May 23, 1846, n. 2916), which declaration Pius IX confirmed on July 17, 1846.

³ S.C.R., April 8, 1854 (n. 3023).

135. On the authority of congregations. 1. General decrees which are established for the universal Church and duly promulgated have the force of universal law: decrees indeed of the Sacred Congregation of Rites, even if they have not received special approval from the supreme pontiff; but decrees of other congregations, if they have been issued by mandate of the supreme pontiff and approved for the whole Church.

2. Particular decrees and responses certainly have the force of a particular precept for those to whom they are directed, and per se for them alone: for the sacred congregations have been furnished with a special faculty for establishing decrees of this kind. Nevertheless, because they are not directed to the universal Church, proximately and per se they cannot have the force of universal law, because the legislator does not intend to oblige all by them.

Therefore particular decrees and their obligatory force are not per se to be transferred to similar cases of other places or persons, especially because particular decrees regard the particular circumstances (of custom, of avoiding scandal, of a right acquired by a third party, etc.) of those to whom they are directed. Hence it happens that the decrees themselves sometimes seem to contradict one another. But if the adjuncts of places and persons are the same, particular decrees and decisions supply a probable norm for judging and acting safely even for others, since the questions proposed are resolved by theologians eminent in knowledge and prudence.

3. If, however, particular responses exhibit an interpretation of an already existing universal law independent of particular adjuncts, under certain conditions they can have the force of universal law.

a. That an absolute interpretation independent of particular adjuncts is exhibited is gathered both from the words of the decree and especially from this: that when the congregation has been asked repeatedly, it always returns the same response.

b. One must first note the distinction between comprehensive and extensive declarations. They are called comprehensive if the declared sense does not depart from the proper use and received signification of the words; they are called extensive if they contain something beyond that which the words, taken properly and according to common use, denote.¹ Extensive declarations establish new law; but comprehensive declarations declare what is already contained in the law.

c. Comprehensive declarations are of two kinds: either they explain a law clear enough in itself because of the doubts of particular persons; or they explain a law obscure and doubtful in itself, yet without departing from the proper sense of the words.

a. Comprehensive declarations have the force of universal law without further promulgation, provided that they are issued in authentic form.

a. This indeed holds of all congregations, but especially of the responses of those congregations which authentically interpret and declare ecclesiastical decrees pertaining to morals and discipline.

b. According to the opinion of many, these declarations do not need promulgation, because they do not contain a new law, but only interpret a law already existing and already promulgated; nevertheless some authors require promulgation even of decrees of this kind, if the decrees explain a law obscure and doubtful.

b. Extensive declarations do not have the force of universal law (but only of particular law), unless they have been issued in authentic form and after the supreme pontiff has first been consulted (excepting decrees of the Sacred Congregation of Rites), and have been duly promulgated. For since these declarations contain a new law, they must proceed from legislative power and be duly promulgated.

Therefore particular decrees which do not contain a universal declaration can indeed be followed by all in similar adjuncts as a probable norm, whether they establish something as licit or illicit; but by those decrees the sacred congregations do not intend to settle controversies existing among authors concerning the sense of the law, nor to declare the opposite opinion improbable.

¹ Cf. Schmalzgrueber, Ius ecclesiasticum, preliminary dissertation, n. 373.