§ 1. On Ecclesiastical Law Considered in Itself

— I. The name and form of ecclesiastical law. 1. Because of the absolute power which the Supreme Pontiff enjoys, he is held to no certain form to be observed in establishing law, so that he can establish law even by an oracle of the living voice. Nor are inferior legislators bound by any universal disposition to write the law. But according to the use of the various form, the name by which the law is customarily called also varies.

By the generic name of Apostolic Constitutions all pontifical laws can be designated. More strictly, an Apostolic Constitution is called a law which is contained in the more solemn form of a Bull. A Bull is already recognized by the inscription alone. For it is inscribed: "Pius, bishop, servant of the servants of God." But a Brief or letters in the form of a brief have as their proper conclusion that they are said to be given under the ring of the fisherman. Encyclical letters are recognized from the persons named to whom they are directed, if they are destined for some universality of persons, especially of bishops.

To indicate the spontaneous origin of a law, it is said to be made motu proprio. And those words are written at the head of the document.

Decrees, especially general decrees, are called laws which the Supreme Pontiff makes either in a general Council or through the Roman Congregations.

Decretal letters or responses of themselves take occasion from another's report. Rescripts are akin to these, by which another's petition is satisfied. These are accustomed rather to define particular cases. The terms Decrees and Decretals are not rarely used promiscuously.

Those things which are issued by living voice are usually Consistorial Allocutions, or speeches which the Supreme Pontiff has held in Consistory.

Finally, individual ecclesiastical laws which are contained in a collection, for example in the Code, are rather called canons, while the individual prescriptions of civil law are named articles.

A statute is a term more proper for designating laws made by a power inferior to the Supreme Pontiff: episcopal, diocesan statutes; or even ordinances of the internal governance of a collegiate moral person: capitular statutes. Yet the laws of councils rather retain the name of decrees: Decrees of the Council of Baltimore.

— II. Promulgation. Neither the Supreme Pontiff, with attention to his absolute power, nor a bishop or other ecclesiastical legislator, with attention to common right, is bound to observe a special form of promulgation.

Before the Constitution Promulgandi of Pius X, 29 September 1908, the more solemn pontifical laws were promulgated by affixing them in certain places of the City (at the doors of the Vatican Basilica and in the Campo de' Fiori); others by the very divulgation which they obtained through periodicals; and it was asked whether a promulgation made in the City was valid for the whole world, or whether a distinct promulgation had to be made in the dioceses. This was already commonly denied.

After the aforementioned Constitution and c. 9 of the Code, "laws made by the Apostolic See are promulgated by publication in the official commentary Acta Apostolicae Sedis, unless in particular cases another mode of promulgating has been prescribed."

Episcopal laws are generally promulgated in a diocesan synod, whence they are called synodal statutes. Decrees which are made outside synod are customarily promulgated either by insertion in the diocesan sheet, or by public pronouncement in a church.

— III. Vacation. Some pontifical laws by their nature begin to oblige at once. Thus it cannot be conceived that a definition of faith or declaration of divine right, once promulgation has been made, does not immediately oblige subjects.

Concerning disciplinary laws, unless something else was expressly provided, a probable opinion, before the Code, from the norm of Roman law (Nov. 66, Ut factae), admitted in provinces or dioceses a vacation of two months. Yet invalidating laws were not judged to be vacating.

Now from the clear disposition of the Code, c. 9, laws of the Holy See "exert their force only after three months have been completed from the day which is placed on the issue of the Acta (Apostolicae Sedis), unless from the nature of the thing they bind at once, or in the law itself a shorter or longer vacation has specially and expressly been established." In diocesan laws no vacation of itself is required.

— Of itself that vacation affects laws of mere concession or permission no less than those directly obliging. Yet it easily happens that, by a certain voluntary action, subjects immediately use a favorable law after its promulgation has been made: and the legislator himself, unless he has expressly said otherwise, seems tacitly to consent to that prompt docility. Thus, in a liturgical matter, in which a certain variety is accustomed to please, use was immediately made in the City of the new prefaces of St. Joseph and for the dead. And who would think that the use of a promulgated indulgence must be delayed for three months?

— IV. Extension of law. 1. Of itself, a universal law obliges all the faithful. Yet Orientals are not held by disciplinary pontifical laws unless from the words or nature of the law something else is established. This is expressly established concerning the Code of Canon Law by c. 1. Yet they can gain the indulgences of the Latin Church ¹. A particular law obliges the community or region for which it was made.

2. When a community is defined by territory, individuals of themselves are not obligated except insofar as they are part of the community existing in such a place; and therefore not outside that territory. Wherefore c. 8 § 2 says: "A law is not presumed personal, but territorial, unless something else is established." Yet insofar as this is expedient for the common good, personal laws can be made, either for a certain class of citizens, for example for clerics, or for all. "If something which an absent person does or omits outside harms in the homeland" ², he will be held by the law. It is the case of a law which prescribes presence itself in a place. For example, a pastor absent from his parish or from the diocesan synod will not be formally excused because he is staying outside the diocese. Wherefore he could also be punished with excommunication.

3. From c. 10, already recalled, "Laws regard future things, not past things, unless provision is made in them concerning past things by name."

¹ Cf. resp. S. Paenit., 7 July 1917, A.A.S. 1 Aug. 1917 (IX, 399), or Periodica, IX, p. 67.

² d'Annibale, I, 205.

— V. The force of law. 1. Although laws can often make contrary acts invalid, "only those laws are to be held invalidating or incapacitating by which either the act is expressly or equivalently established to be null or the person to be incapable" (c. 11).

2. Those who labor under invincible ignorance are of themselves excused from the law and escape penalties. This also can be understood more benignly in ecclesiastical law from cc. 2199; 2202, § 1; 2218, § 2; 2229. Cf. what was said in n. 63. Nevertheless, since invalidating or incapacitating laws are judged to have been especially made on account of the common good, "no ignorance of invalidating or incapacitating laws excuses from the same, unless something else is expressly said" (c. 16 § 1). Moreover, in the external forum, ignorance of law is not presumed, but must be proved (c. 16 § 2).

3. By canon 15, according to the maxims of simple probabilism, it is expressly established: "Laws, even invalidating and incapacitating laws, do not urge in a doubt of law." Understand a doubt as reasonable or prudent. What a doubt of law is, cf. above, n. 55.

Wherefore an authentic interpretation which explains a doubtful law must be promulgated, in order that it may oblige (c. 17 § 2).

But in a doubt of fact, the Ordinary can dispense in the law, provided it is a question of a law in which the Roman Pontiff is accustomed to dispense (c. 15).

— VI. The duration of law. Laws which either by their nature or by an express clause are not temporary remain until they are revoked. Moreover, "a later law obrogates an earlier one, if it expressly declares this, or is directly contrary to it, or orders anew the whole matter of the earlier law from the beginning" (c. 22).

Nevertheless "a general law in no way derogates from the statutes of special places and of individual persons, unless something else is expressly provided in the law itself." Therefore, with attention to those words, which are taken from c. Licet, I, De Const. in 6° (I, 2), unless an abrogating clause is inserted, the episcopal statutes themselves are not taken away by a later general law. But, indeed, a clause of this sort will not be omitted.

Concerning the Code, however, the peculiar disposition of canon 6 has this effect, that it abrogates any opposed laws, whether general or particular, unless something else is expressly provided concerning particular laws. Indeed it even took away contrary customs, except immemorial or centenary customs, which, from c. 5, can be tolerated in the way that has been said.

But observe from c. 22 that an earlier law is obrogated through a later law of the same extension, not only when this is expressly said or when it is directly contrary to the earlier law, but also when it orders anew the whole matter of the earlier law from the beginning. The reason is that it is of itself contrary to the common good that subjects should have to bear a twofold ordering, as it were parallel, of the same thing. This also is the reason why we say that many decrees concerning a matter which is ordered by the Code have been suppressed.