Chapter II. The Power of Making Laws

No body of men could live together in peace without being subject to a supreme authority whose function it is to look after the common weal by defending the rights of all, repressing and punishing crime, and taking measures in the common interest which are beyond the power of private enterprise. God, from whom all power is derived, has willed that there should be a separate supreme spiritual authority to look after the spiritual welfare of mankind, and another to look after its temporal welfare. As Leo XIII teaches, in his Constitution Immortale Dei, November 1, 1885: ‘‘ The Almighty, therefore, has appointed the charge of the human race between two powers, the ecclesiastical and the civil, the one being set over divine, and the other over human things. Each in its kind is supreme, each has fixed limits within which it is contained, limits which are defined by the nature and special object of the province of each, so that there is, we may say, an orbit traced out within which the action of each is brought into play by its own native right. ... One of the two has for its proximate and chief object the well-being of this mortal life; the other the everlasting joys of heaven. Whatever, therefore, in things human is of a sacred character, whatever belongs either of its own nature or by reason of the end to which it is referred, to the salvation of souls, or to the worship of God, is subject to the power and judgement of the Church. Whatever is to be ranged under the civil and political order is rightly subject to the civil authority, Jesus Christ has himself given command that what is Caesar’s is to be rendered to Caesar, and that whatever belongs to God is to be rendered to God.”

The spiritual and the civil power use their authority to make laws, and in this chapter we propose briefly to indicate those who have legislative authority in the Catholic Church. z. The power of making laws resides in the supreme authority in the Church, and in any person or body of men to whom the power has been communicated.

(a) The Pope, by the primacy of jurisdiction which he receives from God, is the supreme lawgiver in the Church. 5° He exercises this function either alone or in a general council. Sometimes he acts in his own name, sometimes he uses one of the Roman Congregations for his purpose. 'The Congregation of Sacred Rites (S.R.C.) has received from the Pope authority to make laws for the whole Church in liturgical matters which have been entrusted to its supervision.

The general decrees, then, of the S.R.C. bind the whole Latin Church by their own authority. The same must be said of special decrees which are comprehensive—i.e., which merely interpret the meaning and application of a pre-existing law. Decrees made in answer to special questions, if they are not promulgated authentically, and especially if they are extensive—i.e., if they contain a new provision of law—bind the parties concerned, but probably impose no obligation on others.

(b) The Bishops, assembled in national or provincial councils, or separately in their respective dioceses, make laws for their own subjects.” A Bishop’s legislative authority is usually exercised in his diocesan synod; other ordinances are looked upon rather as precepts than laws, unless the Bishop, after consulting his chapter, specially expresses his mind to the contrary. By modern ecclesiastical law, an Archbishop has no legislative authority over his suffragans or their dioceses. He can hear appeals from their subjects, and in special cases he supplies for their neglect of duty (Can. 274).

Bishops, inasmuch as they are subject to the common law of the Church and the decrees of the Holy See, can make no law which is contrary to these.

(c) Religious Orders have power to make laws for their own members. The power is exercised according to the special Constitutions and Rules approved by the Holy See for each Order. Orders of women, however, have no legislative authority, though the superioresses, by virtue of what is called dominative power, can of course give binding precepts to their subjects.

(d) Parish priests, since they have no jurisdiction in the external forum, are incapable of making laws.

It belongs to canon law to treat more fully this and similar matters connected with laws; nor is it any part of the duty of a moral theologian to inquire what is the legislative authority in civil matters.¹

¹ Pius IX, May 23, 1846; Can. 253.