Point I. On the Legislative Power of the Church

I. Existence of the power. The Church enjoys legislative power. This proposition is of faith from the Vatican Council,¹ and is clear from these words of Sacred Scripture: "But if he will not hear the Church, let him be to you as a heathen and a publican. Amen I say to you: whatever things you shall bind upon earth, shall be bound also in heaven."² Besides, consult the dogmatic theologians.

¹ Session 4, c. 3, dogmatic constitution Pastor aeternus.

² Matt. 18:17-18.

II. Subject of the power.

1. Universal laws can be made by: 1. the Supreme Pontiff (can. 218, 219); 2. an Ecumenical Council (can. 228). In establishing laws, the Supreme Pontiff usually uses the work of the Sacred Roman Congregations, concerning which we shall speak especially in a scholion. When the Apostolic See is vacant, the Sacred College of Cardinals and the Roman Curia have no other power than that which is defined in the constitution of Pius X Vacante Sede Apostolica, December 25, 1904 (can. 241).

2. Particular laws can be established by:

a) A bishop for his diocese, both within and outside a synod, even without the Chapter having been heard (can. 329, § 1; 334; 335; 362).

b) Vicars and Prefects Apostolic enjoy in their territory the same rights and faculties which belong in their own dioceses to residential bishops, unless the Apostolic See has reserved something (can. 294, § 1).

c) An Apostolic Administrator constituted permanently enjoys the same rights and honors, and is held to the same obligations, as a residential bishop. If he has been given for a time, he has the same rights and duties as a Capitular Vicar (can. 315, §§ 1 and 2, 1°).

d) When the see is vacant, the governance of the diocese devolves to the Chapter of the cathedral church (can. 431, § 1); from the Chapter to the Capitular Vicar (can. 432, § 1).

Pastors lack legislative power (cf. can. 83).

e) Plenary councils for several ecclesiastical provinces, and provincial councils for an ecclesiastical province (can. 291, § 2). Nevertheless, it is required that the decrees of the aforesaid Councils be transmitted to the Sacred Congregation of the Council, or to the Sacred Congregation de Propaganda Fide if there is question of mission lands (can. 252, § 2), and be reviewed by it (can. 291, § 1). Once this review has been made, it is permitted that they be promulgated. Permission of this kind involves approval or confirmation called common. But special approval, or approval in specific form, is had if they are confirmed with the clause motu proprio and ex certa scientia. This approval causes the statutes of the Council to become pontifical.¹ In a diocesan synod the sole legislator is the bishop (can. 362).

f) General chapters of exempt clerical religious institutes (cf. can. 501, § 1). But legislative power of this sort does not belong to councils or general chapters of nuns, nor does it seem to have been conceded to general chapters of non-exempt religious congregations of men except by privilege; for apart from dominative power, their Superiors generally do not seem to have ecclesiastical jurisdiction.² Legislative power likewise generally is lacking to Superiors General of religious Orders;³ a fortiori to provincial and local Superiors, and likewise to provincial Chapters.⁴

Question. Who can impose precepts?

¹ Benedict XIV, De Synodo, bk. 13, c. 5, n. 11.

² Wernz, Ius Decretalium, I, n. 94.

³ Yet there seem to be exceptions.

⁴ From these things it is clear that many governors of imperfect communities, although they enjoy the power of jurisdiction, nevertheless lack legislative power. This indeed has place because the Church so disposes; for of itself it is not repugnant that governors of this sort possess legislative power.

Response. Precepts can be imposed by: 1. those who in the Church enjoy legislative power, such as the Supreme Pontiff, the local Ordinary, etc.; 2. those who have power of jurisdiction for the external forum, such as the local Ordinary or the Superior of an exempt religious institute; 3. those who possess dominative power, such as a father, a religious Superior, etc.; 4. those who enjoy domestic power, such as a father, mother, master, or religious Superior.

One who enjoys dominative power, jurisdiction for the external forum, and domestic power, such as the Superior of an exempt religious institute, can impose precepts by force of dominative power, jurisdiction, and domestic power alike.

Finally, concerning the use of the power of making precepts, note these words of St. Thomas: "Prelates ought to abstain from a multitude of precepts" (II-II, q. 105, a. 1, ad 3); likewise these words of St. Alphonsus: "A multitude of decrees would be the ruin of the Congregation" (Corr. gener., n. 75).