Chapter II. On the Author of Law, or on the Legislator

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

I say, 1st. The Church has the power of establishing laws which conduce to the end proper to herself. The reason is that the Church is a perfect society in her own kind, and therefore she ought to be able to provide for her own governance, which she obtains through legislative power. The positive arguments are handed down more fully by the canonists.

I say, 2nd. Those who hold supreme power in civil society can establish laws which conduce to the end of temporal happiness. For the power of making laws is a necessary means for preserving society. Therefore it ought to be present in him to whom supreme authority over it belongs.

Question 1. Who in the Church possess the faculty of establishing laws?

Response. The Pope, a general Council, Bishops, and particular Councils.

1st. The Pope or Roman Pontiff for the whole Church. For it was said to him in the person of Peter: "Feed my lambs, feed my sheep." John xxi, 15 and 16. - But the word to feed signifies the same as to govern and rule.

2nd. A general Council likewise for the whole Church. For a general Council juridically consists of all the Bishops of the whole world convoked by the Pope, and of the Roman Pontiff, the supreme head of the whole Church, by whose authority its decrees must necessarily be confirmed. Therefore it has the fullest jurisdiction over the universal Church.

3rd. Bishops for the diocese. This is clear from Acts xx, 28: "The Holy Spirit has placed you Bishops to rule the Church of God."

§ 1. Bishops are successors of the Apostles and by divine institution are placed over particular churches, which they govern with ordinary power under the authority of the Roman Pontiff (Can. 329).

§ 1. It is their right and duty to govern the diocese both in spiritual matters and in temporal matters with legislative, judicial, and coercive power, to be exercised according to the norm of the sacred canons.¹

§ 2. Episcopal laws begin to oblige immediately from promulgation, unless something else is provided in them; moreover, the mode of promulgation is determined by the Bishop himself (Can. 335).

And therefore he can also simply make laws even outside a synod and without the chapter having been heard. For to him must be attributed the principal authority of all things to be done. An abbot or prelate nullius has the same ordinary powers which belong to bishops in their own dioceses. Cf. Can. 323, § 1.

Apostolic Vicars and Prefects enjoy in their territory the same rights and faculties which belong to bishops in their own dioceses. Cf. can. 294; 323, § 1; 198, § 11. Concerning Apostolic Administrators, see canons 312-318.

Archbishops, however, and Patriarchs cannot make laws for the diocesans of their suffragans, because they are not their superiors properly so called, although they can settle lawsuits brought before them.

4th. Particular Councils for the province. For if Bishops, taken separately, are able to establish laws for dioceses, similarly also in a Council, whether plenary for the whole nation or provincial, they can establish laws for the nation or province. Concerning these councils the new Code decrees as follows:

§ 1. When the plenary or provincial Council has been completed, the president is to transmit all the acts and decrees to the Holy See, and these are not to be promulgated before they have been weighed and reviewed by the Sacred Congregation of the Council; moreover, the Fathers of the Council themselves are to designate both the mode of promulgating the decrees and the time at which the decrees, once promulgated, begin to oblige.

§ 2. The decrees of a plenary and provincial Council, once promulgated, oblige in the whole territory of each one, and local Ordinaries cannot dispense from them except in particular cases and for a just cause (Can. 291).

But confirmation of Synods by the Apostolic See can be done in two ways, to be carefully distinguished: in common form, or in specific form. In common form, by which their statutes are neither approved absolutely, nor, much less, sanctioned by Apostolic authority, but are only permitted to be promulgated; in specific form, by which, after diligent examination has been premised, their decrees are confirmed by the Apostolic See motu proprio and from certain knowledge, and therefore put on the nature of pontifical law with regard to those to whom they are directed. - Cf. Bened. XIV, de Synod. dioec. lib. 13, cap. 5, n. 11; and lib. 12, cap. 5, n. 13. - Nevertheless transmission to the Sacred Congregation of the Council, and much less confirmation by the Apostolic See, is not necessary for the statutes of a diocesan Synod.

The Bishop is the only legislator in a Synod, the others having only a consultative vote; he alone subscribes the synodal constitutions; and if these are promulgated in the Synod, by that very fact they begin to oblige, unless something else is expressly provided (Can. 363).

¹ Cf. Addenda, p. 1126, n. 83.

Question 2. Are the statutes of the Second Plenary Council of Baltimore to be said to have been approved in common form, or rather in specific form?

Response. It seems it must be said that they were approved only in common form. For the approval which they received was neither given to them from certain and personal knowledge of the Supreme Pontiff, nor with the formalities required for specific form having been employed. This is clear from the letter of the Supreme Pontiff, Pope Pius IX, to the Fathers of the Council, where it is said: "As regards the acts of the aforesaid Council ... you will receive a suitable response concerning those same acts from Our Congregation set over the Propagation of the Faith." - Cf. Acta Conc. Plen. Balt. II, p. cxxxv. - It is also clear from the decree of the Sacred Congregation of the Propagation of the Faith for the recognition of the Council, p. cxxxvi. - Cf. Smith, Elem., vol. 1, n. 74.

Question 3. Must the same be said concerning the statutes of the Third Plenary Council of Baltimore?

Response. Affirmatively, as is gathered from the Decree of recognition, which is prefixed to the acts of the Council itself. For there it is said that "the Most Eminent Fathers set over the Sacred Council for Propagating the Christian Name, in general meetings held on the days 17, 24, 27, and 31 of the month of August, and also on the 5th day of September in the year 1885, after diligent inquiry had been employed, and after all things had been weighed with careful study and due maturity of judgment, examined the Decrees of the same Council and, with some emendations and modifications added, recognized them, that they may be observed inviolably by all to whom it pertains." Then it is added: "Moreover, His Holiness deigned benignly to approve this sentence of the Sacred Congregation, reported to the Supreme Pontiff Leo XIII by the Most Reverend Lord Dominic Jacobini, Secretary of the same Sacred Congregation, in the Audience of the 10th day of September 1885, and commanded that the present Decree be issued concerning these things."

Question 4. Can the Administrator of a Diocese, while the see is vacant, Prelates of Religious, and Abbesses or Superioresses of Nuns establish laws?

Response, 1st. The administrator of a vacant diocese has all and only those faculties which belong to a Capitular Vicar, and therefore, just as ordinary episcopal jurisdiction passes to the latter, so it passes to the former, in spiritual and temporal matters, excepting those things which in law are expressly prohibited to him. Hence he cannot innovate or abrogate anything, but can only govern the Diocese according to laws already existing. Yet he can make statutes which would be necessary for the circumstances, so that laws already made may have force. Cf. St. Alphonsus, n. 104. - Cf. Can. 431, § 2; 435, § 1, 2, 3; 436.

Response, 2nd. Chapters or general Congregations and Prelates of Religious are able to establish true laws, within the limits of their jurisdiction, according to the proper constitutions of the Order. For they have statutes approved by the Supreme Pontiff, which bestow this faculty upon them.

Response, 3rd. Abbesses or Superioresses of Nuns cannot make laws properly so called, since they are not capable of ecclesiastical jurisdiction. They can, however, exact obedience in conscience concerning things commanded, 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 ought to be preserved in a community.