The interpretation of law

Vol. I, Pt. I, Q. III, Art. 2. The Natural Law, Properties · Vol. I, Pt. I, Q. III, Art. 4. Human Law, Interpretation of Law · Vol. I, Pt. I, Q. III, Art. 5. Ecclesiastical Law, Interpretation

Interpretation is distinguished as twofold: properly so called, and improperly so called, or epikeia. Hence:

Vol. I, Bk. I, Tr. II, Diss. II, Pt. I, Sect. III, Ch. I, Art. VI, § I. On Interpretation Properly So Called

n. 137.

I. Notion. Interpretation properly so called is the explanation of the words of a law with respect to the sense which they have according to the intention of the legislator. But the word "interpretation" is commonly taken in a broader sense, so that it also includes those declarations which extend or restrict the law, rather than interpret it; this will be clearer from what is to be said.

n. 138.

II. Division. Interpretation properly so called is divided:

By reason of the author, into authentic, usual, and doctrinal. Authentic is that which proceeds from the legislator himself (or his superior or successor), or from him to whom the faculty of interpreting the law has been delegated (can. 17, § 1). Usual is that which is made through the usage or custom of the people. Doctrinal is that which is handed down by learned men or experts in law (St. Alphonsus, I, 200).

Authentic interpretation can be made by way of law and by way of judicial sentence or rescript in a particular matter (can. 17, §§ 2 and 3), according as it formally explains the law and therefore regards the whole community, or applies it to a particular case or person. The latter, however, as is clear, are not interpretations properly so called, but applications of the law, although applications of this sort are apt to induce an interpretation of the law, as we shall say immediately.

By reason of scope, into comprehensive, extensive, and restrictive. Comprehensive is that which does not depart from the proper or usual signification of the words. Extensive is that which extends the law to more cases or persons than the proper signification of the words permits. Restrictive is that which restricts the law to fewer cases or persons than is permitted by the proper signification of the words. Comprehensive interpretation is distinguished into declarative and explicative, according as it merely declares words of the law which are certain in themselves, or explains a doubtful law (cf. can. 17, § 2).

n. 139.

III. Author of authentic interpretation. Laws are authentically interpreted by the legislator or his successor, and by him to whom the power of interpreting has been committed by the same (can. 17, § 1). Therefore:

The Supreme Pontiff can authentically interpret by way of law: first, his own laws; second, all other laws, whether passed by an Ecumenical Council, by a particular Council, by a Bishop, or by chapters of regulars. Moreover, he can interpret also divine law itself, both natural and positive.
A Bishop can authentically interpret by way of law the laws made by himself or by his predecessor, whether within or outside a Synod; but not, of himself, the laws of a national or provincial Council, since a Council is superior to a Bishop. I said "of himself," because Councils sometimes grant the faculty of interpreting to the Metropolitan, either alone or with the consent of the suffragans, with the authority of the Apostolic See always preserved.
Sacred Congregations, just as they lack the power of making laws (n. 109), so also are without the power of interpreting them authentically by way of law, without pontifical approval (can. 244, § 2).
The Commission for Authentically Interpreting the Canons of the Code. This commission was established by Benedict XV by the Motu proprio of September 15, 1917,¹ and to it "alone will belong the right of authentically interpreting the canons of the Code, after hearing, however, in matters of greater importance, that Sacred Congregation whose proper matter is the subject proposed for discussion by the Council."

Furthermore note that doubts which are of lesser importance or do not have much difficulty can be resolved by the Most Eminent President of the Commission.²

In religious orders, generally only general chapters possess the faculty of authentically interpreting rules by way of law, provided those rules have the force of law independently of pontifical approval.
The faculty of authentically interpreting laws by way of judicial sentence or rescript in a particular matter belongs both to Sacred Congregations and to Tribunals, and to other ecclesiastical judges (cf. can. 244, § 2). Sometimes, however, even in these cases, by reason of the importance of the matter in question, pontifical approval is sought. In addition, akin to the faculty of authentically interpreting law by way of judicial sentence is the faculty belonging to every Superior who must apply the law and bind the parties.

¹ A.A.S. 1917, p. 483.

² Commission for the Interpretation of the Code, December 9, 1917 (A.A.S. 1918, p. 77).

n. 140.

IV. Force of interpretations. 1. Authentic interpretation set forth by way of law (n. 139) has the same force as the law itself; and if it merely declares words of the law which are certain in themselves, it does not need promulgation and has retroactive force; if it narrows or extends the law, or explains a doubtful law, it is not retroactive and must be promulgated (can. 17, § 2). It is said:

a) If it merely declares words of the law which are certain in themselves, it does not need promulgation. For in this case the law is objectively clear enough, so that the interpretation at most removes a subjective doubt.

b) And it has retroactive force; that is, the law was in force from the beginning in that sense which the interpretation sets forth.

c) If it narrows or extends the law, or explains a doubtful law, it is not retroactive and must be promulgated. It is not retroactive, that is, the law is in force, not from the beginning, but only from the time at which the interpretation was made, in the sense set forth by the interpretation. And it must be promulgated. That promulgation is necessary, if there is question of a narrowing or extending interpretation, follows from the fact that the former abrogates something of an existing right, while the latter adds some new right. It used to be disputed whether the same could be said of a comprehensive interpretation which explains a truly doubtful law, understand: objectively or publicly doubtful, or such that it is deservedly called into doubt as regards that sense. That controversy now is no longer practical, since for the future promulgation is necessary at least by the disposition of the legislator.

Authentic interpretation given by way of judicial sentence or rescript in a particular matter does not have the force of law and binds only the persons and affects only the matters for which it was given (can. 17, § 3). This, however, does not prevent forensic usage and the style of the Curia from being able to arise from repeated judicial decisions of tribunals, which, with the consent of the legislator acceding, receive the force of law.
Usual interpretation is equivalent to authentic interpretation set forth by way of law, if the usage or custom has been legitimately prescribed. A custom not yet prescribed should rather be referred to doctrinal interpretation, and is to be greatly valued, according to that saying: "Custom is the best interpreter of laws" (can. 29; St. Alphonsus, I, 108).
Doctrinal interpretation has only as much value as the reasons brought forward by learned men and their authority. But if the doctors agree, moral certainty concerning the sense of the law will generally be had.

n. 141.

V. Rules of interpretation. For authentic interpretation, which proceeds from legislative power, no rules are assigned. In usual interpretation, the doctrine on custom should be kept before one's eyes (n. 19). For doctrinal interpretation the following rules are handed down.

Ecclesiastical laws are to be understood according to the proper signification of the words considered in the text and context; if this has remained doubtful and obscure, recourse must be had to parallel places of the Code, if there are any, to the end and circumstances of the law, and to the mind of the legislator (can. 18). It is said: the proper signification of the words; understand either the natural signification, or the legal signification, that is, that established by law, which legal signification is sometimes different from the natural one.
Laws which establish a penalty, or restrict the free exercise of rights, or contain an exception from the law, are subject to strict interpretation (can. 19).
If there is lacking an express prescription of law, whether general or particular, concerning a certain matter, the norm is to be taken, unless there is question of applying penalties, from laws passed in similar matters; from general principles of law observed with canonical equity; from the style and practice of the Roman Curia; and from the common and constant opinion of doctors (can. 20).

Vol. II, Bk. IV, Tr. II, Diss. I, Pt. I, Division, Imposition, and Interpretation of Penalties

n. 853.

I. Notion. An ecclesiastical penalty is the privation of some good, inflicted by legitimate authority for the correction of the delinquent and the punishment of the delict (canon 2215). It is said:

Of some good, that is, either spiritual or temporal or mixed, as a benefice is.
For the correction of the delinquent and the punishment of the delict. The amendment of the delinquent is not always the primary end of an ecclesiastical penalty, although the Church always ultimately intends the salvation of souls, and consequently also the amendment of delinquents. But proximately, besides amendment, she intends: to repair the injured order by taking vengeance concerning the delict; to render the delinquent incapable of further damage; to effect that others may have fear.

II. Division. Penalties are distinguished:

By reason of the primary end, into medicinal penalties or censures, vindicative penalties, and penal remedies and penances (canon 2216). Medicinal penalties or censures primarily intend the amendment of the delinquent. Vindicative penalties primarily regard vengeance concerning the delict. Penal remedies intend to forestall true delicts or further delicts; hence they either suppose only a transgression which nevertheless does not reach the nature of a delict, or regard a delict perhaps to be perpetrated, but not one already perpetrated. Especially under this head they are not penalties in the proper sense.
By reason of determination, a penalty is called determinate if it is established taxatively in the law itself or precept; indeterminate if it is left to the prudent judgment of the judge or Superior, whether by preceptive or facultative words (canon 2217, § 1, 1°).
By reason of the mode by which it is inflicted, a penalty is called latae sententiae if a determinate penalty has been added to the law or precept in such a way that it is incurred by the very fact of the delict committed, that is, without a condemnatory sentence or a new precept of infliction; nevertheless, a declaratory sentence is sometimes added, as will be said below. It is ferendae sententiae if it must be inflicted by a judge or Superior (canon 2217, § 1, 2°), namely through a condemnatory sentence or in the manner of a particular precept. It is clear that an indeterminate penalty is always ferendae sententiae.
By reason of the author, a penalty is called a iure, by law, if a determinate penalty is established in the law itself, whether it is latae sententiae or ferendae; ab homine, by man, if it is issued in the manner of a particular precept or by a condemnatory judicial sentence, even if established in the law. Wherefore a determinate penalty ferendae sententiae, added to a law, before the condemnatory sentence is only a iure; afterward it is at once a iure and ab homine, but is considered as ab homine (canon 2217, § 1, 3°). On this consideration depends the competence of remitting the penalty, as will be explained. A penalty latae sententiae to which a declaratory sentence has been added remains a iure.

The question whether a penalty established neither by law nor in the manner of a particular precept, but by a general precept, is a iure or ab homine is not solved by the Code. The more common opinion holds that it is a iure; and this is therefore also preferable, because it is the more benign interpretation (cf. canon 2219, § 1).

Note. A penalty is always understood as ferendae sententiae, unless it is expressly said that it is latae sententiae or contracted ipso facto or ipso iure, or unless other similar words are used (canon 2217, § 2).

III. Imposition of penalty. 1. In decreeing penalties, an equitable proportion with the delict is to be observed, with account taken of imputability, scandal, and damage; wherefore there must be considered not only the object and gravity of the law, but also the age, knowledge, training, sex, condition, state of mind of the delinquent, the dignity of the person who is offended by the delict or who commits the delict, the intended end, the place and time in which the delict was committed, whether the delinquent acted from an impulse of passion or on account of grave fear, whether he repented of the delict and himself strove to avoid its evil effects, and other similar things (canon 2218, § 1).

Not only those things which excuse from all imputability, but also those which excuse from grave imputability, likewise excuse from any penalty, both latae and ferendae sententiae, even in the external forum, if the excuse is established for the external forum (canon 2218, § 2), that is, proved.
A penalty should not be inflicted in the case of equal mutual injury; for, as canon 2218, § 3 has it: Mutual injury is compensated, unless one party must be condemned on account of the greater gravity of the injury inflicted by the same party, with the penalty diminished if the case bears it.

IV. Interpretation of penalty. In penalties the more benign interpretation is to be made (canon 2219, § 1). And canon 19 says: Laws which establish a penalty are subject to strict interpretation. Hence:

In a doubt of law concerning the existence of a penalty, namely, whether a certain penal law regards the fact perpetrated here and now, that penalty, if it is latae sententiae, is not incurred; if ferendae, it should not be inflicted. In a doubt of law concerning the quality of the penalty, namely, whether the law contains a penalty latae or ferendae sententiae, the penalty should be understood as ferendae sententiae; whether it is a iure or ab homine, it should be understood as a iure.¹ In a doubt of law concerning the quantity of one penalty, namely, whether the law prescribes a graver or a lighter penalty, the milder one should rather be decreed. In a doubt of law concerning the number of penalties, namely, whether one penalty or several penalties are to be applied, only one penalty is to be applied. But if it is doubted whether a penalty inflicted by a competent Superior is just or not, the penalty must be observed in each forum, except in the case of an appeal in suspensive. But a manifestly unjust penalty, as regards substance, and therefore manifestly invalid, is to be sustained in neither forum. On a doubt of fact, see n. 858.

¹ A doubt of law in this matter exists concerning a general penal precept, as was said above.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 8 passages

Vol. I, Pt. I, Q. III, Art. 2. The Natural Law, Properties

n. 315.

Interpretation—that is, explanation of the law which indicates whether or not it obliges in a particular case—may be applied to the Natural Law as follows:

(a) Interpretation which explains the intention the lawgiver had in making the law and the sense he gave to the words of the law (verbal interpretation), may be made when either a law itself is not entirely clear, or some person is not clever enough to see its meaning. Example: The commandment, “Thou shalt not kill,” needs to be interpreted, for it does not forbid every kind of killing.

(b) Interpretation which explains the intention a lawgiver would have had, had he foreseen a particular case in which his law would be harmful, and which therefore sets the will of the lawgiver against the words of the law (emendatory interpretation, epieikeia), may not be applied to the Natural Law; for God, unlike human legislators, foresees things not only in general, but also in particular, and hence there is no room for correction or benign interpretation of natural laws. Example: Titus, who was a chronic invalid, committed suicide in order that his family might be freed from distress. He argued that the Fifth Commandment did not foresee the difficulties of earning a living under modern conditions, and that his sacrifice would be pleasing to God. Titus did not reason well, for suicide is forbidden for motives that apply universally (e.g., that society, and especially one’s family, are injured by the act of suicide).

n. 316.

Verbal interpretation of the Natural Law is made as follows: (a) by private authority—that is, by those who are competent, on account of learning and prudence, to understand the meaning of the law, such as moral theologians; (b) by public authority—that is, by those who are appointed to rule, with the prerogative of declaring the meaning of the Natural Law. The Pope, since he must feed the flock of Christ, is divinely constituted to interpret Natural Law, and does so authentically and infallibly. Thus, the Church declares that certain matrimonial impediments are natural, and therefore incapable of being dispensed.

On the competence of the Church to give authoritative interpretations of the natural law in the field of morals, Pius XII has spoken clearly and forcefully: “... it must openly and firmly be held that the power of the Church has never been limited to the boundaries of strictly religious matters’ as they are called; but the whole content of the natural law, its institution, interpretation and application are within its power insofar as its moral element is concerned. For the observation of the natural law, by the ordination of God, is the way by which man must strive to attain his supernatural end. On the road to this supernatural end. it is the Church that is his leader and guide. This is the way the Apostles acted, and from the earliest times the Church held to this way of acting as it does today—and not in the manner of a private leader and counselor, but from the command and authority of God” (AAS 46 [1954] 671-672).

Vol. I, Pt. I, Q. III, Art. 4. Human Law, Interpretation of Law

n. 385.

Interpretation

Interpretation.—Though laws are carefully framed as to language, doubts about their meaning will often arise—in ordinary cases, because of lack of understanding or changes of conditions, and in extraordinary cases, because from the circumstances the law seems inapplicable. Hence the need of explaining the law, which is done in ordinary cases by interpretation, in extraordinary cases by epieikeia (see 411 sqq.).

n. 386.

Interpretation is a genuine explanation of the law, that is, one that states the meaning of the words of the law according to the intention the lawgiver had in mind when he chose them. It is of various kinds.

(a) According to the author from whom it proceeds, interpretation is authentic, if it comes from the lawgiver himself or from another authorized by him; it is usual, if it comes from common usage (i.e., from the manner in which the law is customarily observed); it is doctrinal, if it is made by learned men according to the rules of correct exegesis.

(b) According to the effect, interpretation is declarative, if it clears up what was obscure in the law; it is supplementary, if it extends or limits the law, by adding to or subtracting from the cases included under it.

(c) According to the manner in which it is made, interpretation is strict or wide, Strict interpretation gives to a word of law that least inclusive and most proper signification it bears (e.g., it understands “son” to stand for son by birth). Wide interpretation gives to a word a more inclusive and less proper signification (e.g., it understands “son” to stand for son by birth or by adoption).

Vol. I, Pt. I, Q. III, Art. 5. Ecclesiastical Law, Interpretation

n. 483.

Interpretation

Interpretation.—The meaning of interpretation and its various species were explained above in 315 sqq.

n. 484.

As to the force of interpretation of church laws, the following points must be noted:

(a) Authentic interpretation given in the form of law has the force of law; if it is merely declarative of words of the law certain in themselves, it does not need promulgation and is retroactive; if it is supplementary, it needs promulgation and is not retroactive, since it is a new law (Canon 17, Sec. 2);

(b) Authentic interpretation given in the form of judicial sentence or of rescript in a particular matter has not the force of law; and it obliges only the persons and affects only the things concerned (Canon 17, Sec. 3);

(c) Usual interpretation has the force of law when it is given through a legitimate custom (see above, 391 sqq.), for “custom is the best interpreter of law”;

(d) Doctrinal interpretation has not the force of law, since it does not proceed from the lawgiver. Its value depends on the reasons and the authority by which it is supported. When all the doctors agree, their interpretation is morally certain; when they disagree, the various interpretations have more or less probability.

n. 485.

Rules for Doctrinal Interpretation

Rules for Doctrinal Interpretation.—(a) The words must be understood in their proper sense according to text and context, unless this be impossible; if doubtful, they must be judged according to parallel places in the Code, the circumstances, reason of the law, and the mind of the lawgiver (Canon 18).

(b) Things that are burdensome should be understood in their most restricted sense (Canon 19), things that are favorable in their widest sense. Thus, the censure pronounced against simony is understood in the narrow sense of simony against the divine law; a privilege granted to the clergy is understood in the wide sense as given to all the clergy.

(d) A particular law derogates from a general law; but a general law does not derogate from a previous particular law, unless derogation is expressly mentioned in the general law; for the particular law is considered an exception to the general law (Canon 22).

n. 486.

Authentic interpretations of ecclesiastical laws are given by the legislator, his successor, or one delegated by either (Canon 17, Sec. 1). (a) The Pope is the authentic interpreter of all ecclesiastical laws. A special commission appointed by the Pope interprets the general law of the Code. (b) The bishop is the authentic interpreter of diocesan laws made by himself or by his predecessors.

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 12 passages

Vol. I, On Conscience, V. On Doubtful Conscience · Vol. I, On Laws, I. On the Nature of Law · Vol. I, On Laws, VIII. On Privileges · Vol. I, On the Second Precept of t…, IV. On Vow · Vol. II, On the Seventh and Tenth P…, IV. On the Modes of Acquiring Ownership by Private Will · Vol. III, On Baptism, III. On the Minister of Baptism

Vol. I, On Conscience, V. On Doubtful Conscience

n. 150.

Hatreds should be restricted and favors should be broadened. R. I. 15 in 6 - For no one desires to be hated, but all desire to be pleasing. Therefore favors are to be preferred to hatreds. Favor is understood as whatever indulges liberty or grants grace. R. 122 de R. I. Hatred is whatever restricts liberty, establishes a punishment, or injures some right. But since it sometimes happens that what is a favor to one is hatred to another, the particular case must be considered, so that it may be determined whether favor is to be preferred to hatred, or hatred to favor. Hence there arises the general principle: In obscure matters the minimum is to be followed, R. I. 30 in 6, L. 9 de Reg. Iur., and therefore the interpretation of law is to be made less burdensome and more benign to liberty. Whence there is another general principle: Always in doubts the more benign things are to be preferred. L. 56 de R. I. And likewise another: Unless you have been certain of the mandate, you will not be compelled to execute what is commanded. C. Cum iure 31 de Off. et pot. iud. del. L. 1. 1. n. 97.

n. 157.

You will resolve: Therefore that axiom, a doubtful law does not oblige, is to be understood of a law doubtful by positive doubt, or truly probably doubtful. Now law can be positively doubtful in many ways concerning its existence and concerning its cessation; concerning existence, whether it has been enacted, whether promulgated, whether the time of obligation has arrived, whether it extends to such a case; concerning cessation, whether it has been abrogated, whether its excuse or dispensation is present, whether it has already been fulfilled. And in all these cases we say that the aforesaid axiom has place, unless we wish to admit the truth of the general proposition and at the same time deny the truth of the proposition contained in the general.

Therefore law can be doubtful: 1. As regards its very existence and promulgation, concerning which S. Alph. says: "In order that law oblige, it must not only be promulgated, but also promulgated as certain. And this point must firmly be established here," 1. 1. n. 63 seq. and 97. And, to pass over others, these things are from the distinguished Doctor apud S. Alph. 1. 1. 66: "As long as there is a probable judgment that there is no law prohibiting the action, such a law is not sufficiently proposed to man; whence since the obligation of law is of itself burdensome, it does not urge until it is more certainly established." C. 31 de Off. iud. deleg.

As regards its understanding and obvious interpretation, and whether it is obscure or ambiguous. For since law must be sufficiently proposed in order to oblige, the legislator is not judged to wish to oblige beyond that which is clearly and determinately expressed in the law. R. I. 30. 57 in 6; L. 9 C. de Leg. et Const.; Suarez in 1. 2. tr. d. 12. s. 5. n. 7. Obscure: for example, whether regular prelates, since they too have their own sheep, ought to apply Mass for them on feast days. This question, twice proposed before the Holy See, has not yet been solved. Giraldi Expos. I. P. p. 2. s. 85. t. 3. Ambiguous: it is provided that a beneficed cleric not reciting the canonical hours after six months from obtaining the benefice does not make the fruits his own; nevertheless the fruits are to be understood not of the earlier and later time, but only of the later.
Whether it has an extensive or restrictive interpretation, concerning which S. Alph. 1. 3. n. 1036 says: "When it is doubted whether a law comprehends some case or subject, it is the same as if it is doubted whether a law exists for that case or subject, and therefore liberty possesses." Cf. also 1. 1. n. 27. 97; Lugo De Poenit. d. 16. n. 59, De Iust. et Iur. d. 23. n. 110.
Whether it has ceased, either immediately when it was enacted, because it was never received, or with the progress of time through desuetude; concerning which S. D. 1. 3. n. 112 says: "Nor is the first opinion an obstacle, which we followed 1. 1. n. 97, namely that in doubt whether a law has been received, the law rightly obliges; for here we are not involved in doubt, but in probable opinion.... For in doubt the presumption stands for the law, since a crime in not receiving a just law is not presumed. But when it is probable that the obligation of the law never began, or has been abolished, then the presumption for the law ceases and liberty possesses." The same S. D. has this, 1. 1. n. 107 par. An vero, 1. 4. n. 47. The same must consequently be said when it is probable that the end of the law has ceased adequately, L. 1. 1. n. 199, or that the law has been abrogated by custom, L. 1. 3. n. 290, or that in a particular case there is no need of dispensation, L. 1. 1. n. 192, 1. 3. n. 304. Certainly as soon as the obligation of the law is doubtful, its possession consequently becomes doubtful; and therefore in the case the argument taken from the Rule of possession has no force.
Whether the law is just or unjust; and here a threefold case can occur. The first is that the justice of the law is doubted because the legislator himself is doubted, whether he is a legitimate superior. Now in this case, if the doubt about the legitimacy of the superior is positive, about which we are treating, namely it is truly probable that he is not a legitimate superior, by that very fact the non-existence of the law becomes truly probable, and therefore it does not oblige. Cf. L. 1. 1. n. 98. 121. - But if the doubt is merely negative, the law must be obeyed, "whenever the superior is in peaceful possession of his power; for then his condition, as already possessing the right of commanding, is better." L. 1. 1. n. 98, 1. 4. n. 47. The other case is that the justice of the law is doubted because it is doubted whether the superior exceeds his power. In positive doubt, or true probability concerning excess of power, the same must be said as in the preceding case. For by the very fact that it is truly and manifestly probable that the superior exceeds his power, the non-existence of the law becomes truly probable, and therefore it does not oblige. Cf. L. 1. 3. n. 617. - But if the doubt is merely negative, presumption, speaking per se, always stands for the superior.

The third case is because the liceity of the thing commanded itself is doubted. In positive doubt or true probability, the law is not doubtful, and therefore obliges. For the superior then commands a thing probably licit, indeed certainly licit; for he commands that the subject embrace some probable opinion in practice, which is certainly licit. Therefore he commands licitly and by right. Therefore the subject is bound to obey. Lugo Resp. Mor. l. 3. d. 19; L. 90, l. 1. n. 93. 99. 124, l. 4. n. 47; Wirceburg. De Legib. c. 1. a. 1. "But the doctors commonly limit the aforesaid opinion, and say that the subject is not bound to obey, 1. if the thing is very difficult and troublesome.... They limit it 2. when by obeying the subject would expose himself or another to the danger of undergoing grave inconvenience in life, reputation, honor, or goods." L. 1. 4. n. 47, l. 3. n. 617, l. 1. n. 31. "The reason is that the subjection and obedience due to the superior does not take away your right and possession, or that of another, concerning the good of honor, reputation, body, or fortune. Therefore you are not bound to deprive yourself of this certain possession in a matter of such great moment; rather it seems consonant with equity that greater account be taken of your certain possession, and that this be preferred to the right or possession, in some way doubtful, of the superior." Elbel 173; Laymann c. 5. n. 12; Suarez tr. 3. d. 12. s. 5. Moreover, because then in the case of a very difficult or harmful thing it can deservedly be doubted whether the superior exceeds the limits of his power, and therefore the existence of the law becomes doubtful; or legitimate epikeia can then also have place, according to the various circumstances of the particular case. But if the doubt is merely negative, presumption, as has already been said, Cf. 146, always stands for the superior. Cf. Suarez De Relig. t. 4. l. 4. c. 12 seq.; Lugo Resp. Mor. l. 3. d. 19. Besides, as regards practice more, "the opinion of all theologians, both recent and ancient, is common: they teach that in obscure matters the superior must be obeyed where sin is not certain; and thus all have taught who have treated this matter. Thus also all the masters of mystical theology with S. Ignatius of Loyola in the Letter on the Virtue of Obedience." L. 1. 1. n. 100. 194; Lugo l. c. n. 3; Suarez tr. 3. d. 12. s. 5.

Vol. I, On Laws, I. On the Nature of Law

n. 174.

What is interpretation of law, and how manyfold is it? - Law is not always clear. Hence for rightly understanding it interpretation is needed, which is defined: the genuine explanation of the law according to the mind of the legislator. Mind, not hidden, but expressed by the words of the law. Mind, because law is what the legislator willed. S. Th. 2. 2. q. 120. a. 1 ad 3.

Interpretation is: 1. Authentic, doctrinal, and usual, according as it is made by the superior himself, or by learned men, or from custom. In order that interpretation be truly authentic and not doctrinal, it is necessary that the Superior, or another who has this power from the Superior, declare the law insofar as he is Superior, that is, using the power of jurisdiction. For if as a private person he declares his mind, the interpretation will not be authentic, but doctrinal. Custom is equivalent to authentic interpretation if it is legitimately prescribed; otherwise it is merely doctrinal. For custom is "the best interpreter of laws." C. 8 de Consuet. Whence "those things are by no means to be changed which have always had a certain interpretation." L. 23 de Legib.

Strict or broad, according as it is made strictly according to the natural property of the words, or broadly according to the more benign sense. Thus these words: sons, clerics, religious, etc., according to their natural signification can be taken strictly of natural and legitimate sons, of those initiated by first tonsure, of regulars solemnly professed, or broadly of all sons, of all ecclesiastical persons, of all religious, even novices.
Comprehensive or merely declarative, or extensive or restrictive, according as by that interpretation either nothing new is introduced, or something is added by it, when the words are taken either as they sound or beyond their natural sense. - C. Inter alia 31 de Sent. exc.; Sixtus V, C. Immensa, Jan. 22, 1588; S. Th. 1. 2. q. 86. a. 6; Ithur. Cas. 53. n. 2 seq.; L. 1. 3. n. 760. 265; C. I. beginning, Dispos. etc. a. 3.

n. 175.

What are the rules of interpretation? - The words of law are to be taken according to their proper and usual acceptance, unless something absurd or unjust follows from this, or the law becomes wholly useless. For words demonstrate the will of the one speaking. And otherwise nothing would be certain in laws. Hence the common saying: Where the law does not distinguish, neither ought we distinguish. In doubt about the true sense, attention must be given to the mind of the legislator, or to the end and reason of the law; to the thing or matter about which the question is concerned; and to the circumstances either antecedent or consequent. R. 88 de R. I. in 6. - A penal and odious law in doubt is to be interpreted strictly; but a favorable law undergoes a broad interpretation. And generally "laws are to be interpreted more benignly, so that their will may be preserved." L. 18 de Legib. L. 12. 18. 19. 23. 24. 25. 26. 37 de Legib., L. 155 de R. I.; R. I. 15. 30 in 1; L. 200; Struggl q. 4. n. 1 seq.; Suarez De Legib. l. 6. c. 1; Wirceburg. De Legib. c. 5. a. 1.

n. 176.

Does authentic interpretation need promulgation in order to oblige? - R. Negatively, if that interpretation is a declaration of a sense clearly contained in the law, since such a declaration is not a new law; for it establishes nothing new, but declares what has been established, and has force backward. - R. Affirmatively, if the declaration is of a sense obscurely contained in the law, because it is then had as a new law; or if it restricts or extends the law, since then it is truly a new law. - L. 100. 200, 1. 3. n. 1027; Suarez De Legib. l. 6. c. 1. n. 3.

n. 177.

Must a law be extended from case to case because of identity of reason? - "Penal laws are not to be extended from case to case." L. 1. 6. n. 689. For hatreds are to be restricted. R. I. 49 in 6. - Likewise invalidating laws or laws granting some right cannot be extended from case to case; for then the act lacks value, or has force only from the positive will of the legislator. C. I. beginning, Dispos. etc. a. 4. - It must likewise be denied as regards other laws, even if the same reason runs; a fortiori if there is only a similar reason. For not the reason of the law, but the will of the legislator, duly intimated to the subjects, has the force of law and obliges. For the legislator can well dispose concerning one thing and not concerning another. Hence the common axiom: The reason of the law is not the law; and the end of the precept does not fall under the precept. L. 20. 21 de Legib.; S. Th. 1. 2. q. 100. a. 9 ad 2; L. 1. 3. n. 273. But "to act contrary to the end of the law is a certain disorder, which does not seem to be excused from all fault." L. 1. 3. n. 1030. - But if it is not licit of itself to extend a law from case to case, a fortiori it is not licit to extend a privilege from persons to other persons, from things to other things. C. 27 de Praeb. in 6; Reg. 28 de R. I. in 6; L. 14. 15. 16 de Legib.

Except nevertheless whenever otherwise something manifestly absurd or inequitable would follow, and the legislator could manifestly be accused of injustice, imprudence, ignorance. Thus by the Constitution Decori of S. Pius V, nuns are prohibited from going out of the monastery, except because of a great fire, or epidemic, or the sickness of leprosy. Therefore they will also be able to go out for another similar cause, for example flooding of the monastery, collapse, attack of robbers.

But this is chiefly had in the following: 1. In correlatives, for example, between husband and wife, betrothed man and betrothed woman; whence if the husband because of the adultery of the wife is admitted to divorce from bed, the wife also enjoys that right because of the adultery of the husband; if the betrothed woman is freed from betrothal because of the long absence of the betrothed man, C. 5 de Spons., similarly he is freed because of the absence of the betrothed woman. For then the legislator, expressly willing one thing, is judged to have implicitly willed the other also. 2. In things equated by law, such as presentation, postulation, election to a benefice; eggs and milk foods by reason of abstinence. What the law disposes in these matters concerning one, it is judged to dispose the same concerning another. And thus, if the more worthy is to be elected, the more worthy is also to be presented; if eggs are permitted, milk foods also are permitted. R. I. 53 in 6. 3. In connected things, of which one cannot stand without the other. Therefore he to whom a case is committed can also compel the parties to appear. C. 5 de Off. Deleg. 4. In things contained: for in the whole the part is contained; thus he who can make a testament can also make legacies; those to whom marriage is prohibited are also prohibited betrothal. L. 16 de Sponsal.

And these things have force even if the question concerns a penal law. Nor then does the rule have force: Hatreds are to be restricted, favors broadened. For that proceeds only when the disposition of the law is extended from interpretation of congruity, not when it must be extended from interpretation of necessity, which ought not so much be called extension as mere comprehension. And certainly extension of law is of two kinds: one necessary, the other congruential. The former is altogether required for justice or rectitude; but the latter not so, but is only voluntary, because although the law can justly comprehend many other things, nevertheless a lesser comprehension suffices for the justice of the law and the property of the words, with the reason of the law also being preserved. Now the general rule about not broadening penal laws must be understood of voluntary interpretation, that is, without which the prudent disposition and justice of the law can still be preserved; not of the necessary extension of law, which is required so that justice or equity may be preserved. And thus, a heretic is irregular. Therefore also an apostate. L. 12 de Legib. - L. 200, 1. 3. n. 293. 1027; Ithur. Cas. 53.

As it is necessary to extend a law when its reason is manifest, L. 12 de Legib., so also it is necessary to restrict it when similarly its reason is manifest; because the thing itself about which the question is concerned requires restriction; because otherwise something unjust or absurd would follow; because the case is altogether rare and foreign to the mind of the legislator; because otherwise the law would become too hard and severe. L. 18. 25 de Legib.

n. 178.

Do the Declarations, Decisions, and Decrees of the Sacred Congregations have the force of law? - There is no doubt that they oblige in the particular cases for which they are made. C. Sixtus V Immensa. There is no doubt that they have the force of law if the strength of Apostolic firmness is added to them. Cf. Bened. XIV, C. Sacramentum Poenitentiae, or if they have been solemnly published by mandate of the Apostolic See, or if in the Church they have been universally and by the use of several years disseminated. L. 106. But all the Decrees of the Sacred Congregations have the same authority if they have been duly promulgated. Pius X, C. Sapienti consilio, July 1, 1908.

Besides the aforesaid cases, concerning particular Decrees, about which alone there can be a question, there is a threefold probable opinion. The first opinion asserts that they have the force of obliging all, because they contain an authentic interpretation of laws. - The second opinion says that they do not oblige universally. The reason is that, in order that a law oblige all, solemn promulgation of a universal law is altogether required, and simple publication of a particular Response does not suffice. - The third opinion affirms this when the Declarations are comprehensive, namely when they do not depart from the proper and usage-received signification of the words. For then no promulgation is needed, since a new law is not made, but a law already made and promulgated is only explained. But it denies this when the Declarations are extensive, namely when they depart from the proper and commonly accepted signification of the words. For then they are new laws, which require legislative power and promulgation. But even if they contain an interpretation of doubtful and obscure common law, and not a mere declaration of clear law, they cannot have the value of universal law without legitimate promulgation, or before they are brought into common practice. Cf. 176. Schmalz. Dissert. prooem. n. 373 seq.; Pichler. Proleg. n. 46; Reiffenst. Prooem. n. 130 seq.; L. 1. 1. n. 106, 1. 3. n. 760. 765. 1027, 1. 6. n. 401. 403. 556. 593. 699, H. A. tr. 15. n. 87; Bened. XIV De Syn. l. 6. c. 6. n. 4, Index of the Work v. Congregation of the Council, its prudent inconstancy in its decisions and in rendering judgments; Scav. 1. 1. n. 339. 240, Milan ed. 1874; A. S. S. v. 3. p. 563 seq.; E. M.

178 bis. Note: The most recent ordering of the Roman Curia was made by the Constitution Sapienti consilio of Pius X, July 1, 1908. In it Congregations, Tribunals, and Offices are distinguished. There are eleven Sacred Congregations, and they are the following; to each of them its own matter is exclusively assigned, the cumulation of rights in all Offices of the Holy See being abrogated.

Congregation of the Holy Office. It guards the doctrine of faith and morals. Therefore to it alone remains judgment concerning heresy and other crimes which induce suspicion of heresy. - To it also was devolved the whole matter concerning Indulgences, in which matter the Constitution In ipsis of Clement IX, July 6, 1669, fully remains in force. But the faculty remains intact to the Holy Office of knowing those things which concern the Pauline privilege and impediments of disparity of cult and mixed religion, besides those things which touch dogmatic doctrine concerning marriage, as also concerning the other Sacraments.
Consistorial Congregation. It prepares the matters to be done in Consistories. In places which are not Mission places, it constitutes new dioceses and chapters; and treats those things which pertain to the division and general governance of dioceses, and to the election of Bishops, Apostolic Administrators, and Coadjutor and Auxiliary Bishops. In naming Bishops one must adhere to the Constitution Romanis Pontificibus, Dec. 17, 1903. To it also pertain those things which regard the governance, discipline, studies, and temporal administration of seminaries. But it resolves doubts concerning the competence of the Sacred Congregations. - A section was added concerning the spiritual care of emigrants, and concerning priests themselves who emigrate. Pius X, M. P. Cum omnes, Aug. 15, 1912.
Congregation on the discipline of the Sacraments. To it pertains the whole legislation concerning the discipline of the seven Sacraments. Therefore to it pertain matrimonial dispensations in the external forum, dispensations of those to be ordained, and dispensations concerning the place, time, and conditions of receiving and reserving the Eucharist, and of celebrating Mass, etc. To it also belong questions concerning the validity of marriage or sacred ordination, and others pertaining to the discipline of the sacraments. Dispensations from impediments of marriage, in the form of a Brief, are granted by this Sacred Congregation, provided they are of an honorable nature, and if the dispensations themselves are subject to greater taxes. Other dispensations are given in the form of a rescript. Cf. Ord. servand. in Rom. Cur., special norms c. n. 13-16.
Congregation of the Council. To it is committed the whole discipline of the secular clergy and Christian people; and therefore to it pertains the observance of the precepts of the Church, except the Eucharistic fast, which belongs to the S. C. on the Sacraments; to it pertain those things which regard Pastors and Canons, those which are referred to pious Confraternities, pious works, pious legacies, Mass stipends, benefices, offices, ecclesiastical goods; to it also pertains the faculty of exempting from conditions required for obtaining benefices, whenever they are to be conferred by the Ordinary; likewise those things pertain which regard ecclesiastical immunity and the celebration of Councils. - To this Congregation is joined the special Lauretana Congregation. The faculty of interpreting the Decrees of the Council of Trent no longer pertains exclusively to the S. C. C., but belongs to the individual Congregations according to their proper competence. S. C. Cons. Feb. 11, 1911.
Congregation of Religious. To this Congregation pertain the affairs of all Religious, of those who live a common life without vows, and of secular third orders, whether among themselves, or with regard to them in relation to others; also dispensations from common law with religious pertain to it.
Congregation of Propaganda Fide. Its jurisdiction is circumscribed by regions where the sacred hierarchy has not yet been at least perfectly constituted, and the state of mission perseveres. Nevertheless those things which regard faith, marriage, sacred rites, and religious as such are to be referred to the proper Congregations. It has united to itself the Congregation for the affairs of the oriental rite, which preserves its functions entire. - To it is joined the Committee for the union of dissident Churches. Besides, the administration of all goods has been committed to it, even of the Reverend Chamber of Spoils. Indults which until now it was accustomed to grant to others, it now grants only to its own subjects. Ord. servand. in R. C., special norms c. 7. art. 6.
Congregation of the Index. To it pertains everything which regards harmful books and writings which are to the ruin of souls. - The Cardinals, Consultors, and ministers of this Congregation and of the Holy Office can communicate with one another all those things, and only those things, which pertain to the prohibition of books, and all are bound in this matter by the same secrecy.
Congregation of Sacred Rites. To it pertain all those things which proximately regard the sacred rites and ceremonies of the Latin Church, and also the insignia and privileges of honor to be granted, both personal and real, which are referred to sacred rites and ceremonies. To it also pertain those things which regard the beatification and canonization of Saints and Sacred Relics, concerning which one must adhere to the Constitution In ipsis of Clement IX, July 6, 1669. - To this Congregation are joined the liturgical, historical-liturgical, and Sacred Chant Committees.
Ceremonial Congregation. To it pertains the moderation of ceremonies in the Pontifical Chapel and Court, and of the sacred functions of Cardinals, and also the precedence of Cardinals and Legates before the Holy See.
Congregation of Extraordinary Ecclesiastical Affairs. It treats those affairs which are referred to it through the Secretariat of State, especially those which are referred to Civil Laws and Concordats.
Congregation of Studies. To it pertains the moderation of studies and academic degrees of Catholic Universities, even of those which pertain to Religious, and the faculty itself of granting academic degrees.

There are three Tribunals, namely:

Sacred Penitentiary. Its jurisdiction is restricted only to those things which regard the internal forum, even non-sacramental, and it settles questions of conscience. It especially retains the norms of the Constitution In Apostolicae of Benedict XIV, Apr. 13, 1744, with the changes introduced and approved by legitimate use being preserved, and also the prescriptions through the Constitution Sapienti consilio and through the law Ord. serv. in R. C. which regard this tribunal. All things are expedited secretly and gratis in this tribunal. - Ord. serv. in R. C., special norms c. 8. art. 1.
Sacred Roman Rota. To it are devolved all contentious non-major causes which are conducted in the Roman Curia, both civil and criminal, the judicial process being preserved. But causes are treated in disciplinary manner by the Congregations themselves to which they belong by reason of the matter. The proper Law must be observed by the S. R. Rota, which is joined to the praised Constitution Sapienti Consilio. In it is established the constitution of the Tribunal, competence, and mode of judging. Besides, in judgments the Rules approved by the Supreme Pontiff Pius X on Aug. 4, 1910, and promulgated on Oct. 25 of the same year, are to be observed. Finally those things also must be observed which agree with it in the Constitution Sapienti consilio and in Ord. serv. in R. C. Cap. 2. Canon 14 of the aforesaid proper law declares the competence of the Sacred Roman Rota thus: "§ 1. The Sacred Rota judges in first instance causes which the Roman Pontiff, either motu proprio or at the instance of the parties, has called to his own tribunal and committed to the Sacred Rota; and these, if need be, and unless otherwise provided in the rescript of commission, it judges also in second and third instance, by means of subsequent turns according to the prescriptions of can. 12. § 2. It judges in second instance causes which have been judged in the first grade by the tribunal of the Most Eminent Vicar of the City and by other tribunals of Ordinaries, and are referred to the Holy See by legitimate appeal. And likewise it judges these, if need be, even in third according to the mode prescribed in can. 12. § 3. Finally it judges in the last instance causes already known by Ordinaries and by any other tribunals in the second or further grade, which have not passed into a res judicata, and are referred to the Holy See through legitimate appeal. § 4. It also sees concerning recourses for restitution in full from any sentences which have passed into a res judicata and cannot find remedy before the judge of second instance according to the title on Restitution in full; provided nevertheless that the matter does not concern a res judicata from a sentence of the Sacred Roman Rota; and in these it judges both concerning form and concerning merit."
Apostolic Signatura. Newly instituted, it is bound to observe the proper Law joined to the Constitution Sapienti consilio itself, and also those things which agree with it in the Constitution Sapienti consilio and in Ord. serv. in R. C. In that Law the question concerns the constitution and competence of the Supreme Tribunal of the Apostolic Signatura, and the mode of judging. This supreme tribunal knows concerning an exception of suspicion against some auditor of the Rota, concerning violation of secrecy and concerning damages inflicted by Auditors, concerning a complaint of nullity against a rotal sentence, concerning restitution in full against a rotal sentence which has passed into a res judicata.

Five Offices are listed, namely:

Apostolic Chancery. Its proper function is to expedite Apostolic Letters under lead concerning the provision of consistorial benefices, concerning the institution of new dioceses and chapters, and for other greater affairs of the Church.
Apostolic Datary. Its proper ministry is concerned with all those things which regard non-consistorial benefices to be conferred, reserved to the Apostolic See. Therefore it also draws up and expedites Apostolic Letters for their conferral, exempts in conferring benefices from required conditions, and cares for burdens and pensions imposed by the Supreme Pontiff in conferring the aforesaid benefices. But benefices are conferred by it through a Bull, or through a decree of simple signature, that is, no Bulls having been expedited. Ord. serv. in C. R., special norms c. 9. art. 2.
Apostolic Chamber. Its care is also the administration of the temporal goods and rights of the Holy See, especially at the time when this is held vacant, according to the norms of the Constitution Vacante Sede Apostolica, Dec. 25, 1904.
Secretariat of State. To it pertain extraordinary ecclesiastical affairs; insignia of honor to be granted, not reserved to the Prelate set over the Pontifical Household; and the expedition of Apostolic Briefs which are committed to it by the various Congregations.
Secretariat of Briefs to Princes, and of Latin letters. This double office has its own function of writing the acts of the Supreme Pontiff in Latin.

The beginning of the year henceforth is to be taken not from the day of the Incarnation of the Lord, that is, from March 25, but from the Kalends of January, in all Apostolic letters to be expedited either by the Chancery or by the Datary. Apostolic Letters, by reason of the gravity of the affairs and of varied form, are distinguished into Bulls, Briefs, and Pontifical Rescripts. - Formerly Bulls were written on rather dark and thicker parchment, and in Lombardic or Teutonic characters; but now from the Motu Proprio of Leo XIII, Dec. 29, 1878, they are written on parchment paper and in Latin characters. Likewise the seal or leaden medal, from which they are called Bulls, with attached cords, is preserved only in Apostolic Letters of conferrals, erections, and dismemberments of major benefices, and also in other solemn acts of the Holy See. In others, the impression of a red-colored seal bears the images of the Apostles Peter and Paul, with the inscription of the name of the reigning Supreme Pontiff drawn around it. A Bull is inscribed: Pius, Bishop, Servant of the Servants of God, and the date is written according to the Roman Calendar. Consistorial nominations, the constitution of new dioceses and chapters, are done through a Bull. Briefs are expedited for affairs of lesser moment; they are written on white and thin parchment, or ordinary paper, and in Latin characters. They bear the seal of red wax with the image of S. Peter engaged in fishing; and therefore they are said to be expedited under the Ring of the Fisherman. Briefs are inscribed Pius Pope X. Their date is designated according to the common calendar. - Finally Rescripts are Responses of Pontiffs, which are often written on the back of the petitions themselves of the supplicants. The Congregation which is called the Reverend Fabric of S. Peter has care only of the property of the Basilica of the Prince of the Apostles according to the Constitution Quanta curarum of Benedict XIV, Nov. 15, 1751.

The Committees for advancing studies either of Sacred Scripture or of history; for administering Peter's Pence; for preserving the Faith in the City, remain in the state in which they were before. The Congregation of the Apostolic Visitation of the City having been removed, those things which pertained to it are referred to the committee of Cardinals to be constituted at the Vicariate of the City. In all Congregations, Tribunals, and Offices, things which are grave and extraordinary must first be signified to the Supreme Pontiff. Other things need pontifical approval, unless special faculties have been granted to their Moderators, and excepting the proper sentences of the Sacred Rota and Apostolic Signatura. - But the affairs to be treated in them are to be treated according to the proper laws and norms joined to the same Constitution Sapienti Consilio. - Organization, provision of officials, internal discipline, manner of acting before the Sacred Congregations, and taxes to be paid are established in the Order to be Observed, or General Rule, which is had for the Sacred Congregations, Tribunals, and Offices. - All officials are bound to swear an oath concerning faithfully fulfilling the office, not receiving gifts even spontaneously offered, and preserving secrecy, according to the formula established there. Provision of minor officials is made through competition in titles and knowledge. - Anyone can treat his own affairs before the Sacred Congregations by himself, through an advocate, through a procurator, through an agent either public or private, Ordo servandus p. 1. cap. 9. - Finally in the Sacred Congregations, Tribunals, and Offices of the Roman Curia, the special Norms of the same Order to be Observed of Sept. 29, 1908, p. 2, must be observed, which especially determine competence, the manner of treating various affairs, the mode of proceeding of full Congregations, and the functions and qualities of various administrators. Assistants must be distinguished by the laurel of doctor in sacred theology and in canon law. Although, with the cumulation of rights in the Offices of the Holy See abrogated, its own seat has been constituted for each affair, nevertheless, because in peculiar cases there can be place for doubt or error, the ancient law remains firm by which, when a petition for obtaining a matter pertaining either to grace or to justice has been referred to and accepted by some Office, it is licit for no one for any reason to approach another Office of his own accord for the same end; but the consent of the Office itself with which the matter began to be treated is needed, or a decree of the Consistorial Congregation by which permission is given of transmitting the affair. Once a question has been instituted before some Congregation by the path of administration and discipline, and this mode of acting has been admitted by the parties, or at least not refused, it is no longer licit for them to institute a strictly judicial action on the same cause.

n. 179.

What is epikeia? - Epikeia is brought back to interpretation, which is a benign but equitable interpretation of law, by which a universal law, or when it speaks universally, is judged not to extend itself to such a particular case, although clearly comprehended in the words of the law, because of particular circumstances which were not either foreseen or in fact comprehended by the legislator. If, for example, a law prohibits carrying weapons at night, I can carry them if I must go out and I will be meeting my enemy seeking me to death.

Yet in order that there be place for epikeia, the law must not only cease negatively in the particular case, because namely the end of the law is then lacking; but it must cease contrarily, namely because observance of the law is rendered sinful, harmful, or too burdensome. Nor then is it necessary to ask the superior, although this can easily be done. For this is deduced from the very properties of law. For law must be honorable, useful, possible, just; and therefore it does not oblige with grave inconvenience, nor does it burden someone above the rest. And this pertains to epikeia. For epikeia is the directive virtue of laws, according as the notion of justice and common utility demands. Hence epikeia pertains to justice commonly so called, as a certain existing justice according to which legal justice is directed, as by a higher rule of human acts.

But there is also place for epikeia when, although the law in a particular case is not rendered sinful, harmful, or too burdensome, nevertheless from a certain equity and benignity it is judged, certainly or at least probably, that the legislator did not wish to include that case in the words of the law. For equity is preferred to rigor. L. 7 de In integrum restit.; L. 8 de Iudiciis C. And then, while doubt remains, since it almost falls back into dispensation, it is necessary of itself to approach the superior, if he can be consulted. But this will not be necessary when it is evidently established that the mind of the legislator was otherwise; for in manifest things there is no need of interpretation, but of execution. - L. 3 seq. de Legib.; L. 201; L. 201; S. Th. 1. 2. q. 96. a. 6, 2. 2. q. 60. a. 5 ad 2, q. 120, q. 147. a. 4; Suarez l. 2. c. 16; Struggl q. 4. n. 7. 8; Ithur. Cas. 53. n. 9-13; Schmalz. l. 1. t. 2. n. 44.

Vol. I, On Laws, VIII. On Privileges

n. 256.

How are privileges to be interpreted? - Privileges are worth only as much as they sound. C. Per exemptionem 9 de Princ. in 6. Therefore they receive neither extensive nor restrictive declaration, but regularly only declarative. C. 27 de Praeb. in 6. Wherefore, when the faculty of absolving from papal reserved cases is granted, the faculty also of absolving from episcopal reserved cases is not included. L. l. 7, n. 98. When the faculty of choosing a confessor is granted, one can choose him as often as he wishes. Regularly, because if a privilege is granted in general words, in such a general concession there do not come those things which someone would not likely grant, R. 81 de R. I. in 6, i.e., things altogether extraordinary and unusual, Laymann on C. Sedes 15 de Rescript.; Reiff. on cited C. 81; nor those things which deserve special mention, or are excluded by custom or law. Therefore, when the faculty of absolving from reserved cases is granted, the faculty of absolving from specially reserved cases is not understood to be granted; when the faculty of absolving from reserved cases even specially is granted, the cases of the Constitution Sacramentum Poenitentiae are not comprehended.

Privileges beyond law are of broad interpretation, since they are benefits of the Prince. C. 16 de Verb. sign.; C. Quia circa 22 de Priv. Conversely, privileges against law are of strict interpretation. For it is expedient for the common good that laws enacted for it be preserved entire as far as can be done. C. Ut filii 1; C. Ad praesentiam 2 de Filiis presbyt. in 6. Nevertheless these too are of broad interpretation if the good of the commonwealth or of Religion is concerned, as are privileges granted to communities or to some pious cause, L. l. 1, App. 2, n. 8; if they have been granted motu proprio, C. Si motu 23 de Praeb. in 6; if otherwise they would be useless, C. 30 in fin. de Priv. Those privileges alone are always of strict interpretation which injure the right of a third party, since they are always understood with justice and the right of a third party preserved, C. Licet 12 de Off. iud. ord.; C. Super eo 15 de Off. iud. deleg.; C. Cum olim 12 de Priv. L. 5 ff.; Wirceburg., de Legib., c. 5, a. 3.

Vol. I, On the Second Precept of t…, IV. On Vow

n. 592.

Vows are to be interpreted according to the more benign part, since they are laws of a free will. L. 224.

Vol. II, On the Seventh and Tenth P…, IV. On the Modes of Acquiring Ownership by Private Will

n. 963.

What is the force of obligation in contracts? Each person is presumed to enter into a contract for himself and his own, unless the contrary is established by the contracting party himself, or from the nature of the thing. Any contract duly entered upon gives birth to an obligation in the forum of conscience, at least on the part of one of the contracting parties, because in a contract some right is given to one or to both parties; but to every right there corresponds its own obligation. - An obligation of this kind regards the contracting parties themselves, not third parties, to whom per se they neither benefit nor harm, as a thing done among others, except in cases determined by law. But it extends itself not only to that which is expressed in the pact, but to all consequences which equity, law, and custom demand according to the nature of the agreement. The reason is that all these things are implicitly understood in any agreement, unless one of these has explicitly been derogated from by special pact. And these are customarily called the naturalia of a contract, so that they may be distinguished from the essentialia, cf. 938, and the accidentalia, cf. 936, 943. C. I. 1123, 1124, 1127, 1130, 1131 ff.; C. G. 1119, 1123, 1134, 1135, 1165, 1156 ff.; C. H. 1097, 1255-1258, 1278, 1281 ff.; C. A. 904 ff., 914 ff., 1017, 1019; C. B. 314 ff., 328 ff.; L. 734. If the obligation is in not doing, C. B. 241, and someone has done it, he must repair the damage and is compelled to remove the work at his own expenses. C. I. 1222; C. G. 1143. - But if the obligation is in doing, it is in the creditor's power to do it at the expense of the debtor, C. I. 1220, or certainly the debtor is bound to pay as much as it interests the creditor, if he does not wish to do it. C. G. 1142. Nor indeed can that which is owed be furnished through another, if it matters to the creditor that it be done by the debtor himself. C. I. 1239; C. G. 1237. But it suffices to do it with moderate or common skill; but if he has done it unskillfully, he will be bound also in the forum of conscience. - If the obligation is in giving, what is owed must be given, not another thing. C. I. 1245; C. G. 1243. If the quality of the thing to be given has not been determined, neither the worst nor the best is to be given. C. I. 870, 1248; C. G. 1022, 1046; C. B. 243. If the very thing to be given cannot be given, its valuation is given, according to the value of the time at which it ought to have been given. C. I. 1223. But if money is to be given, it is estimated from its present value. C. I. 1821; C. G. 1895; C. B. 244. The thing is to be given in the place concerning which agreement was made; otherwise in the place in which the thing existed at the time of the contract; outside these cases, in the place in which the debtor now dwells. C. I. 1249; C. G. 1247; cf. C. B. 269, 270. - It is likewise to be given in one payment, although the thing is divisible. C. I. 1204, 1246; C. G. 1220, 1244; C. A. 1415; C. B. 266. - The obligation of giving a thing imports the obligation of preserving it, with the diligence of a good father of a family applied to his own things. C. I. 1219, 1224, 1817; C. G. 1136, 1890.

The contracted obligation is to be furnished in its own time. If no time has been established, it is to be furnished immediately, unless the thing itself induces delay. C. I. 1173; C. G. 1146. Cf. C. A. 1417; C. B. 250, 271. He who in his own time does not furnish the thing owed, or does not receive it, is said to make delay; and each one's own delay harms him, namely if it was not without civil fault in the external forum, or theological fault in the forum of conscience. Hence he who is in delay furnishes the damage which arises from it; but if grave damage is absent, in this a moderate delay which does not exceed the twentieth day excuses in the forum of conscience. C. I. 1219, 1223, 1225; C. G. 1139, 1146, 1147; C. A. 904, 1334; L. 680.

Vol. III, On Baptism, III. On the Minister of Baptism

n. 446.

Can a father be sponsor in the baptism of the child of his wife by another husband? - Resp. In the negative. The reason is that the prohibition was made for married persons lest they contract spiritual kinship with their own spouse. But this reason would altogether be verified in such a case. Lugo ib.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 10 passages

Vol. I, Treatise On Laws, Part One. On Laws in General, Ch. VI, § I. On the Interpretation of Law

- DEFINITION. Interpretation of law is its genuine explanation according to the mind of the legislator.

Division. It is 1. authentic, doctrinal, and usual, according as it is made by the Superior himself, or by learned men, or from custom.

Strict, or broad, according as it is made strictly according to the natural property of the words, or broadly according to the more benign sense.

Simple, or extensive, when the words are accepted either as they sound, or beyond their natural sense ¹.

¹ Declarations which the Author calls simple, the Doctors are accustomed to call comprehensive, when namely the sense declared does not recede from the proper and received-by-use signification of the words; but extensive when they concede, prohibit, dispense, etc., something beyond that which the words, accepted properly and according to the common sense, denote.

But between these there also intervenes this distinction: if they are authentic, comprehensive ones indeed do not need promulgation; but extensive ones have no force unless they are legitimately promulgated; since by the very fact that they are not contained in the words of the law, they are already certain new laws, and therefore must be promulgated in the manner of laws.

Rules of interpretation:

I. The words of the law are to be accepted according to their proper and received-by-use signification, unless something absurd or unjust would follow from it.

II. In doubt concerning the true sense, attention must be given to the mind of the legislator, to the end of the law, and to the circumstances either antecedent or consequent.

III. Penal and odious law in doubt is to be interpreted strictly; but favorable law demands an ample interpretation. Hence the axiom: Favors are to be enlarged, and odious things restricted. - St. Lig., no. 200, and all others.

QUESTION. Whether a law ought to be extended from case to case because of identity of reason?

I answer affirmatively, whenever otherwise the legislator could be accused of injustice or imprudence. But this is had in the following: 1. in correlatives, for example, between bridegroom and bride; hence if a bride is freed from the obligation of betrothal because of the long absence of the bridegroom, the bridegroom likewise is freed because of the absence of the bride; 2. in equivalent things, such as election and presentation to a benefice; likewise eggs and milk foods as to the law of abstinence; 3. in connected things, such as Deacon and Subdeacon. Likewise in things contained: wherefore he who can make a testament can also make legacies. - St. Lig., no. 200.

Tanquerey

Adolphe Tanquerey, S.S. — 11 passages

Vol. II, Fundamental Moral Theology…, On Laws

§ V. Concerning the Interpretation of the Law of the Church.

Written law, however clearly expressed, often needs interpretation, whether because of the weakness of human understanding, or because of the change of circumstances and customs.

Interpretation is nothing other than an explanation of the will of the legislator. (a) By reason of the author, it can be authentic, if it is given by the superior himself; - judicial, when it is made by a judge sitting for a tribunal; - usual, if it proceeds from the community through observance; doctrinal, whenever it is proposed by private doctors. (b) By reason of its character, it is called declarative, or comprehensive, if it elucidates obscure things and adds or takes away nothing from the law; - suppletive, when it adds what is lacking in the words of the law, especially with attention to the reason of the law, and therefore either extends the law to a case not comprehended in it, or restricts it, by excluding a case contained in the law.

I. Concerning Authentic Interpretation.

1. The authentic interpreter is the legislator himself, or his successor, and "he to whom the power of interpreting has been granted by the same." Authentic interpretation, exhibited by way of law, has the same force as the law itself; and if it only declares words of the law which are certain in themselves, it does not need promulgation and has retroactive force; if it narrows or extends the law or explains a doubtful one, it is not drawn back and must be promulgated. (Code, can. 17).

Now the Supreme Pontiff can interpret general laws not only through himself, but also through the Congregations, to which he delegates his authority.¹ Yet it must be noted that the Sacred Congregations do not proceed in one manner in explaining laws: (a) for sometimes, by a solemn and general decree, approved by the special authority of the Pontiff, they settle a controversy, and therefore in this case their decrees have the force of law;² (b) sometimes they explain the sense of the law, by authority granted to them by the Holy See, and with approval in common form: then also merely declarative interpretation obtains the force of law;³ (c) but often they respond to proposed doubts for a particular case, without issuing a general decree; decisions of this kind indeed hand down a prudent and very probable norm of acting for similar cases, but not, according to the Code, c. 17, an authentic interpretation to be held: "But one given by way of judicial sentence or rescript in a particular matter does not have the force of law, and binds only the persons and affects the things for which it was given."

¹ For interpreting the canons of the Code authentically, a special Commission was instituted by the Supreme Pontiff Benedict XV by the Motu proprio of 15 September 1918.

² Thus the decree of 7 Apr. 1879, declaring that civil marriage, where the law of clandestinity was promulgated, does not produce the impediment of public honesty (De Matrim., n. 363). Then the Pontiff makes the decree his own, and promulgates it by his own authority.

³ Thus the decisions of the Sacred Congregation of the Council in moral and disciplinary matters, when they are not extensive, which are promulgated in this way: The report having been made, the Most Holy One approved and confirmed.

n. 298.

1. In order that decrees of the Sacred Congregations may have the force of obliging, they must be authentic, that is, with the conditions and formalities prescribed by the Pontiff having been observed; and moreover they must be certainly established, whether through insertion in an authentic collection, or from the relation of trustworthy writers. - If the interpretation is merely comprehensive, it does not need new promulgation. But when it is extensive or restrictive, it more probably needs new promulgation, because it is deservedly judged a new law.

n. 299.

II. Concerning Judicial and Usual Interpretation.

1. Judicial interpretation is made through ecclesiastical judges, who apply the law to a particular fact. From this it follows that that interpretation has obligatory force as to the parties who subjected the matter to the judges, unless they have appealed to a superior judge at an opportune time; but as to others, it has only doctrinal authority, yet greater than that which is given by private doctors. - Therefore judgments issued by the Sacred Tribunals, even for a particular case, help greatly for rightly understanding the law itself; yet they can be adduced only cautiously and prudently, because not rarely the sentence depends on special circumstances which are found in such a case, but not in another.

n. 300.

1. Usual interpretation is that which is had from the general observance of the community. For since laws are ordered to the good of the community, account must be taken of the commonly received sense; thence was born the axiom: custom is the best interpreter of law.

But custom can contribute in three ways to understanding the law: (a) antecedent custom discloses the mind of the legislator, because he is judged to have accommodated himself to the customs of the community; (b) concomitant custom furnishes the same, because, by exhibiting the common sense of subjects at the time when the law was enacted, it greatly helps for understanding the words used by the superior; (c) subsequent custom can determine the extension of the law; for since, from what is to be said, it can introduce a new obligation and abolish an old one, a fortiori it can define the extension of the obligation: in this last case it can be truly authentic, namely when it enjoys all the qualities required for establishing law.

n. 301.

1. Rules Concerning Laws in General.

(A) The words of the law are to be taken in their proper sense, unless from the adjuncts it is manifestly established that the legislator thought otherwise.

(a) The reason for the former is because the legislator ought to have used words apt for manifesting his will to the community. Whence, from the Code, c. 18: "Ecclesiastical laws are to be understood according to the proper signification of the words considered in text and context; and if this remains doubtful and obscure, one must have recourse to the parallel places of the Code, if there are any, to the end and circumstances of the law, and to the mind of the legislator."

(b) The reason for the latter is because, since law is an ordination of reason, nothing unjust, absurd, or useless ought to be imputed to the legislator; therefore if the proper sense contained something of this kind, one would have to depart from the letter, in order better to attain the mind of the superior. - Wherefore rule 88 of law, in the Sixth, is as follows: "It is certain that he acts against the law who, embracing the words of the law, strives against the will of the law."

n. 302.

(B) General words are to be understood generally; for example, if it is said all, no one, nothing, the whole, etc., nothing ought to be excepted from the law, unless from the context, parallel places, or other adjuncts, the contrary mind of the legislator is established. For canon law made its own this axiom of civil law: Where the law does not distinguish, neither shall we distinguish.¹

¹ Decretal., cap. Quia circa, 22, de privilegiis (lib. V, tit. 33): "Since he excepted nothing and could have excepted."

n. 303.

(C) Law is contained in the dispositive part, but not in the reason assigned. For the motives which the legislator adduces are not the law itself, and, although they often help for understanding his mind, nevertheless sometimes they lack a solid foundation; while the dispositive part manifests the will of the legislator.

Thus, when the Fourth Lateran Council (1215) restricts the impediment of consanguinity to the fourth degree, it hands down this reason, which certainly lacks foundation: "Because there are four humors in the body, which consist from the four elements."¹ - Whence the intrinsic end of the law must be inferred not only from the reason assigned, but from the monuments of history, or from other adjuncts; and that saying is to be applied only cautiously: the reason of the law is the soul of the law.

¹ Decretal., cap. Non debet, 8, de Consanguinitate (lib. IV, tit. 14).

n. 304.

2. Rules Concerning Certain Laws in Particular.

(A) It is fitting that odious things be restricted and favors enlarged.² To understand this rule, these things must be noted: (a) From the Code, c. 19, "laws which establish a penalty, or restrict the free exercise of rights, or contain an exception from the law, are subject to strict interpretation." (b) Favors, or favorable things, are understood as graces granted to someone, provided that they are not against common right or against the acquired right of a third party.

² Rule 15 of law, in the Sixth.

Having posited these things, an odious law is restricted, that is, it extends no more widely than the words themselves; thus, if an interdict is brought against the people, the clergy is not subject to the same.³ - If the law is favorable, it is enlarged, or is understood in the whole amplitude which the property of the words permits; thus, in favorable matters, the word people embraces the clergy, the word sons embraces bishops, etc.

³ Decretal., cap. Si sententia, 16, de sentent. excomm. in the Sixth.

Yet there are exceptions, concerning which in the course of the work.

n. 305.

(B) In obscure matters the minimum is to be followed.⁴ By obscure things here are understood laws or statutes whose sense, whether in whole or as to part, is so obscure that neither from the text of the law, nor from the context or subject matter, or from custom or other adjuncts, does the true mind of the legislator appear. In this case, it is licit to follow the minimum, that is, to embrace the sense which burdens subjects less. For laws are more inclined to freeing than to obliging, and interpretation is to be made against him who could have spoken clearly.

⁴ Rule 30 of law in the Sixth.

n. 306.

(C) A special law derogates from a general law, even one enacted afterward,⁵ that is, when two dispositions are contrary to one another, that which is special prevails, and thus derogates from the general law, but only in that in which it is contrary to the general law.

⁵ Rule 34 of law in the Sixth signifies the same: "The genus is derogated from by the species."

Now a special law is one which establishes something concerning a thing contained under some genus; thus a law concerning testaments for pious causes is special relative to a law concerning testaments in general; a law concerning donations between spouses is held as special relative to a law concerning donations in general, and this is special relative to a law concerning gratuitous contracts.

Koch–Preuss

Antony Koch; adapted and edited by Arthur Preuss — 7 passages

Vol. I, Its Subject, Norm, and Object, Morality, Its Subject, Norm, and Object, Ch. II, Divine and Human, Section 10: Interpretation of the Law

Vol. I, Tr. III, Chapter V: The Interpretation of Law · Vol. I, Tr. III, Ch. II, Art. II, § 4. On the Interpretation of Ecclesiastical Law

By interpretation is meant an authoritative explanation of a law in accordance with the will of the lawgiver.

n. ¶2.

An interpretation is authentic if it is given, either directly or indirectly, by the lawgiver himself, and in that case has the same binding force as the law which it interprets.

n. ¶3.

Customary interpretation is that which a law receives from the legitimate practice of those who are subject to it. According to an ancient adage, "Custom is the best interpreter of law."¹

¹ "Consuetudo est optima legum interpres." (Codex Juris Can., can. 29).

n. ¶4.

Doctrinal interpretation is that developed by experts according to recognized rules from the wording and object (ratio) of a law. The rules of doctrinal interpretation may be summarized as follows: a) The presumption is always in favor of the letter of the law. When the text is ambiguous, the words must be taken in their proper, ordinary, and natural meaning. b) If the object and purpose of a law (ratio legis) are obvious, but the phraseology is indistinct, the mind of the legislator and the circumstances of the case must be attended to. c) Laws which confer a favor or privilege may receive a wide interpretation (favores ampliandi), provided there be no danger of injuring a third party and no conflict with the general law. d) Penal laws, and laws which impose a new burden or restriction may be interpreted narrowly, that is, not extending the burden to such as are not strictly included in their terms (odiosa sunt restringenda).²

² Regulae Iuris in Sexto Decret. Bonif. VIII, No. 15: "Odia restringi et favores convenit ampliari." Cfr. No. 49: "In poenis benignior est interpretatio facienda." Cfr. Codex Iuris Can., can. 19.

n. ¶5.

When must a law be observed? The general rule is that a legal obligation should be fulfilled as soon as possible.

n. ¶6.

When a fixed term is appointed for the fulfilment of a law, this must be observed. In appointing a fixed term the lawmaker may have intended to make the obligation binding only for that period (tempus appositum ad finiendam obligationem). Thus, if one has missed Mass on Sunday, he is not bound to make up for it on some other day. Or the intention may have been merely to impress the urgency of the precept (tempus appositum ad urgendam vel sollicitandam obligationem). In the latter case the obligation must be fulfilled even after the appointed term has expired. Thus, if a man has neglected to make his Easter Communion during the prescribed season, the duty of making it later continues. ³ If in such a case a person knows beforehand that he will be unable to comply with an obligation at or after the time prescribed, he is bound, if possible, to fulfil it earlier.

³ Conc. Trident., Sess. XIII, 9: "... singulis annis, saltem in Paschate."

n. ¶7.

READINGS.—Codex Iuris Can., can. 17 sqq. (with the commentaries by Aug. Bachofen, O.S.B., Vol. I, St. Louis 1918, and J. Kinane in the Irish Ecclesiastical Record, Fifth Series, Vol. XI, No. 601, pp. 25 sqq.). —Th. Slater, S.J., A Manual of Moral Theology, Vol. I, pp. 100 sqq. —A. Sweens, Theol. Mor., Fundamentalis, 2nd ed., pp. 198 sqq. —A. Tanquerey, S.S., Synopsis Theologiae Moralis, Vol. II, pp. 166 sqq. —A. Vermeersch, S.J., Theol. Mor., Vol. I, Bruges 1922, pp. 159 sqq.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 8 passages

Vol. I, Tr. III, Chapter V: The Interpretation of Law

n. 182.

— I. Notion. Divisions. - 1. The interpretation of law is the explanation of the sense contained in the law.

Taken strictly, it supposes a doubtful and obscure sense, and differs from declaration, which is the verbal exposition even of a clear law.

a) In respect of the author: authentic is that which is made by the legislator or by him to whom he has committed this, and it obliges at least those to whom it has been given and imposed. It is made not only by law, by the legislator, but also by way of sentence, by any competent tribunal, in the cases which it decides, and by way of rescript, in a particular matter, for example by a Sacred Roman Congregation.

Doctrinal is that which is made by experts.

Usual is that which is made by custom, concerning which, c. 29: "Custom is the best interpreter of laws."

b) In respect of the source from which light is sought, the mind or soul of the law is gathered either from the words or from other circumstances. The words must be approached first, and they must be taken according to the usual sense (not the philological sense) and the sense received in the court. If, however, the mind is clear from elsewhere (from circumstances, end, etc.), the words must be left for the mind. The reason of the law, unless the Prince himself has manifested it as adequate by an act sufficiently public, makes interpretation dangerous, especially since the law is contained not by the reason itself but by the words in which it was conceived (Cf. d'Annibale 1, 186). And because the reason of the law is not the law, unless the reasonable will of the legislator requires it, it is not to be transferred from one case to another on account of similarity. Yet that enlargement can be required by the correlation of cases: what is established concerning the bridegroom of itself holds concerning the bride; by juridical assimilation: thus canonical law equates election and postulation; by connection and virtual comprehension: the faculty of making a testament contains the faculty of leaving a legacy.

To avoid fallacies, these things today must be well attended to: the mind of the law must be known, not the mind of the man who is the legislator. Wherefore the mind of the law, or of the legislator as such, is not the mind or intention which the legislator manifests privately or after the law has been made, but not by a legislative act; nor the mind of the individuals who establish the law collegially; nor the mind of those who prepared or wrote the law. For example, when there is question of the Code of Canon Law, the mind of the legislator is the mind of the Pontiff promulgating it, not of the Commission by which it was laboriously produced. From this, however, aids can be brought for detecting the mind of the law. For example, the mind which the acts of the commission manifest can be presumed to be the same as the mind of the Pontiff who approved the work of the commission.

d) In respect of the kind of interpretation, one law is to be interpreted broadly, another strictly. Indeed no law can be taken so broadly that it is extended beyond both the natural and the juridical sense of the words; nor is it to be interpreted more strictly than the justice of the law and the propriety of the words bear, together with the reason of the law, which also must be preserved. But when, with the propriety of the words preserved, the words can be taken in a twofold use, the broader use produces a broad interpretation, the restricted use a strict interpretation. The word, for example, cleric can comprehend or exclude religious and bishops. In favorable matters, where there is place for broad interpretation, by the name cleric we shall understand religious and bishops also, but not in odious and onerous matters: these require strict interpretation. "Odious things ought to be restricted and favors enlarged ¹."

Which law is to be judged favorable, which odious, must first be drawn from the matter itself. Hence, c. 19: "Laws which establish a penalty, or restrict the free exercise of rights, or contain an exception from the law ², are subject to strict interpretation." And more generally we shall say that laws which immediately impose a burden are to be interpreted strictly, but those which grant a faculty or power, broadly. It can easily happen that there is room for doubt. Thus c. 522, concerning the confessor whom religious women can approach, is interpreted broadly by some, strictly by others. Indeed a law is sometimes favorable in one part, odious in another. Then, if the favor and odium can be separated, there will be place for both interpretations at the same time. Thus the law (which, before the Code, was called the privilege of the canon) by which ecclesiastical persons are protected from personal injuries by a penal sanction is favorable insofar as it protects the persons, odious insofar as it inflicts penalties. Therefore we shall understand broadly the persons protected; strictly, the penalties inflicted. If the odious part cannot be separated from the favorable, the direct intention of the legislator is to be observed: for instance, a concession of a pension by which another's revenues are burdened, which is to be taken broadly. Cf. Palmieri, Op. th. I, tr. 3, n. 68.

But what the Prince has conceded, besides law, from liberality, is to be interpreted most broadly. For it is fitting and contributes to the common good that the Prince be esteemed as inclined to benign liberality.

e) By an allied but proper division of authentic interpretation, interpretation is distinguished as comprehensive, extensive, restrictive. The first renders the true sense of the law: private persons can make this alone; the second carries the law over to a case not previously comprehended, as when what had been established concerning those truly absolving an accomplice was transferred to those fictitiously absolving an accomplice; the third exempts from the law cases which the reasonable understanding of the law comprehended: as when, c. 542, the words "who have adhered to a non-Catholic sect" are said to be understood only of those who have receded from the Catholic faith and then given their name to a non-Catholic sect (Cf. response 7, October 16, 1919, of the Commission for the interpretation of the Code, A.A.S. 1919, t. 11, p. 477. Per. X, p. 101).

¹ Reg. 15 of Law in VI.

² Which law here is to be said to contain an exception from the law is not of very convenient explanation. But the matter belongs to jurists.

n. 183.

— Must an authentic interpretation be promulgated? From the very nature of the matter, an extensive or contractive interpretation must be intimated or promulgated in order to oblige. For it contains a true change of law. But if it has been comprehensive, yet dissipates a true obscurity, some, attending only to natural law, deny the necessity of promulgation, which others affirm. The former argue that here there is no question of a new law, but of an old one which, according to its true sense, had already been promulgated ¹. Others, on the contrary, say that a truly doubtful law is none, and therefore, when it is authentically explained, it needs a new promulgation. Thus Wernz, Ius Decret., I, n. 127. The positive law c. 17 § 2 agrees with this.

¹ Palm., Op. theol. I, tr. 3, n. 465.

n. 184.

— On epikeia. Epikeia is called that interpretation of law by which, contrary to even the clear words of the law, but according to the mind of the legislator, some case is prudently exempted from the disposition of the law. For since law disposes according to that which happens for the most part, in a particular case it can fail, indeed become harmful: which the legislator is reasonably judged not to have willed. Cf. Palmieri, Op. theol., I, tr. 3, n. 469-471.

There is, however, place for epikeia if, in a particular case:

a) The law, understood otherwise, would become inequitable or more grave than is just;

b) If, the usual interpretation being attended to, the legislator is prudently conjectured not to have wished to oblige in such a case. An example of the former cause will be if a heretic whom you are trying to lead to the faith offers you, from a proscribed book, a difficulty to be read and solved at once: it will be lawful to read the passage by epikeia. The latter cause occurs especially in lighter matters, for example in the observance of the rule of silence.

But in natural law, since it is placed in right reason, since it forbids things which are intrinsically illicit, and confirms an order indispensable for men even in a particular case, there is no place for epikeia properly so called. Cf. Suarez, De Legibus, L. 2, c. 16, n. 9 and 10.

n. 185.

Summary

— The interpretation of law, or explanation of the sense contained in the law, is not merely verbal declaration.

Authentic interpretation is made by competent authority, whether by law, or by sentence, or by rescript: at least those are obliged to whom the interpretation has been given and imposed.

Usual interpretation is made by custom.

Doctrinal interpretation is made by experts. These must first gather the mind of the legislator, as such, from the words of the law, then from other circumstances, but prudently from the reason of the law.

In respect of the kind of interpretation, it can be broad or strict. Laws which immediately grant a faculty or power are to be taken broadly; laws which immediately impose a burden, strictly; laws which contain a liberal benefit of the prince, most broadly.

Authentic interpretation is distinguished as comprehensive, according to the true sense of the law; extensive, which enlarges the law; restrictive, which diminishes the force of the law. These two latter are to be promulgated. It is disputed whether or not a comprehensive interpretation, if it explains a law objectively obscure, of itself needs promulgation.

Epikeia is an interpretation contrary to the words of the law but consonant with its mind, by which certain cases are prudently exempted, because otherwise the law would become inequitable or too severe. The reason of epikeia is not a defect of the law, but its nature, which can provide only for cases as they happen for the most part. In natural law there is no place for epikeia.

Vol. I, Tr. III, Ch. II, Art. II, § 4. On the Interpretation of Ecclesiastical Law

n. 289.

— I. General norms. Concerning the interpretation of ecclesiastical law in general, these proper points come to be observed.

Besides authentic interpretation, which the legislator himself gives by way of law, and any competent tribunal gives by way of sentence in the causes which it decides, interpretation also takes place by way of rescript in a particular matter.

While the first has the same force as the law itself, both of the latter exercise a force circumscribed to the persons for whom they were given, and that for the affairs alone with which the sentence or rescript dealt (c. 17).

What, then, shall we say about interpretations which appear under this title in the Acta Apostolicae Sedis: Romana. - Romana et aliarum. - Dubia.

The very insertion in the official commentary brings it about that concerning those responses there is authentic certainty also in the external forum.

And it is not doubted that by those responses a secure rule of acting is furnished to all the faithful whom it concerns. Yet the authenticity of the response does not suffice of itself to convert a rescript into a general law. Therefore it remains to be asked whether or not all the faithful are held to follow this interpretation. We think that this question must be answered by this distinction.

When, from the inscription itself, as in the first example, there are named, or at least in a less definite way there are indicated, the dioceses for which they have been given, those responses of themselves oblige those dioceses alone.

But when no person or region is indicated for whom the rescript has been given, the authentic solution of the doubt seems to be proposed to the whole Church, and consequently to oblige all in that matter.

Not rarely it happens that an interpretation, even given to a particular diocese, is so received by authors that it becomes usual, and soon obliges as a custom through connivance.

But if a response circulates outside the Acta Apostolicae Sedis, it is unknown in the external forum, so that, from the very mind of the one responding, the solution has been given as less definitive, and, excepting those to whom the rescript has been sent, others preserve the liberty of thinking differently.

n. 290.

— II. A particular rule concerning the Code of Canon Law. Authentic interpretation of universal laws was accustomed to be made by rescripts, in each one's own province, by the Sacred Congregations. Yet, when a doubt formally affects a canon of the Code, from the Motu Proprio Cum iuris, 15 Sept. 1917, authentic interpretation has been reserved to the proper Commission instituted by that diploma for authentically interpreting the canons of the Code. In matters, however, of greater moment, the Sacred Congregation whose proper matter it is, is heard.

n. 291.

— III. Necessity of promulgation. From c. 17 § 2, authentic interpretation by way of law, not only when it is extensive or restrictive, but also when it is comprehensive but explains a law truly doubtful, is not drawn back retroactively and must be promulgated.

n. 292.

— IV. Computation of time. The special question concerning the computation of time, of which frequent mention is made in laws, is now solved by a proper title of the new Code (l. I, t. 3), yet in such a way that liturgical laws remain untouched. Thus, in a liturgical matter, the day has a beginning other than midnight; and the Sunday which is assigned to a month as the first sometimes precedes the month itself. Furthermore, unless something else is expressly provided, the rules of computation seem able to be proposed and explained summarily in this way.

An hour, concerning whose quantity nothing is said, but which we know consists of 60 moments, according to the various constitution of a clock, begins or ends at the first or last stroke of the clock. And most clocks are judged to have been made so that the hour has elapsed when they give the first stroke of the hour.

But since there are various estimations of hours, of itself the common usage of the place is to be observed; yet for many private acts an option is given, whose force we shall weigh in the treatise on conscience.

A day, even in ecclesiastical matter, has its beginning from midnight, and consists of 24 hours to be computed continuously (c. 32). Hence, when from law computation is made by days, as v.g. concerning the time for which a novice can be absent, parts of days are to be disregarded which do not pertain to the continuous space of 24 hours which are to be computed from midnight to midnight. Wherefore a novice who has been absent twenty times for five or ten separate hours will not be judged to have been absent even for a day; nor is the day on which he sets out or on which he returns to be computed in the time of absence which is estimated by days. ¹ Yet continuity is to be understood morally: he has been absent for a day who has been absent morally for 24 hours, computed from midnight.
A week (c. 32) is said to consist of 7 days, that is, therefore, of 7 spaces of 24 hours to be computed continuously. But it is not required that the days themselves be continuous among themselves, or that a certain day, say Sunday, be considered as the first. Hence, unless the law establishes that the week is to be taken as in the calendar, any seven full days - i.e. seven intervals of 24 continuous hours from midnight to midnight - even not continuous, will make a week.
Month and year either are taken as in the calendar or not. In the latter case, a month designates a space of 30 days; but a year, a space of 365 days.

Furthermore, they are taken as in the calendar:

a) When they are designated by their proper name, v.g. in the month of March, or when an equivalent designation is used. Thus, by saying "in the next coming year," you equivalently designate the year 1923;

b) When continuous time is assigned, as v.g. in suspension for three months.

Thirty or 365 days are taken when the time is designated as interrupted, as when an absence of three months is permitted to a canonical beneficiary.

As to the beginning and end of time: either the term a quo is assigned neither explicitly nor implicitly (suspension from divine things for a month; three months of vacations in a year), and then it is computed from moment to moment. Or the term a quo of time is assigned; then (excluding the special case of acts which are renewed at fixed times, as vows, election): if the term a quo coincides with the beginning of the day, the first day is computed, and the time is ended when the last day of the same number begins: v.g. two months from 15 January are judged to have elapsed when the 15th day of March begins (at midnight). If it does not coincide with the beginning of the day: the fourteenth year of age, the ten-day period for appealing (the beginning of these is birth, the sentence of first instance), the first day is not computed, and the time is ended when the last day of the same number has been completed. Therefore one born 15 March 1900 will have fourteen years, when the day 15 March 1914 has been completed (at midnight).

The day of the same number is taken differently when there is question of several months or years, and when there is speech of several days. In the former case, it is the day which in another month has the same number, v.g. the 20th, the 25th. Yet because some months number 30 days, others 31 days, and February alone has 28 or 29, the day of the same number can fail at the end of the month. But then the last day, v.g. 28 February, is had for the day of the same number as the final days (v.g. 28, 29, 30, 31 Jan.) of the month which has more. But when the time is shorter than a month, the day of the same number is that on which the number indicated by the very space is repeated: v.g. the eighth day, the tenth, if there is question of an eight-day period, of a ten-day period.

Finally, if there is question of acts which recur after fixed intervals, v.g. of vows which after one or two years must be renewed or are converted into perpetual vows, of an election which returns to be made every sixth year, the time is ended on the same recurring day on which it began, but, the consideration of the hour of the act having been neglected, it can be done through that whole same day. Hence, although first vows are not made on the same recurring day on which someone entered the novitiate, but on the next day, nevertheless the vows emitted, ¹ an election made on 15 August, will be renewed on the recurring day 15 August.

As to the obligations of contracts, for example money borrowed to be repaid, unless those making the agreement have defined something else, canon law accommodates itself to the civil law having force in the territory (c. 33 § 2).
Canon 35 distinguishes continuous time from useful time. Continuous time admits no interruption; useful time does not run for one who is ignorant or impeded. V.g. if ten useful days are granted for appealing, the days on which someone has been impeded are not computed in them. Time of itself is judged continuous; the express or tacit concession of useful time is to be demonstrated.

¹ But for those who must reside insofar as they have certain offices to be performed in a definite place, that rule is to be applied prudently and cautiously. Let us suppose a canon who has been present at Matins but not at the other hours in choir. On that day, on which he has fulfilled his office only in part, he is not judged to have resided. Wherefore, if he has already fully consumed his lawful vacations, on that day he loses, for the proportional part, not only the daily distributions, but also, for the proportional part, the fruits of his prebend or benefice, and can be punished as a violator of the law of residence.

¹ And even if one who was professed at the sixth hour repeats the vows only at the eleventh hour, nevertheless, on 15 Aug. from the sixth hour to the eleventh he will not be released from vows.

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 10 passages

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Chapter III: On the Interpretation of Law · Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. III, Article I: On Interpretation Properly So Called · Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. III, Art. I, § 1. On Authentic Interpretation · Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. III, Art. I, § 2. On Usual Interpretation · Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. III, Art. I, § 3. On Doctrinal Interpretation · Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. III, Article II: On Epikeia

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Chapter III: On the Interpretation of Law

Vol. I, Pt. I, Tr. III, Ch. III, Article VII. On the Interpretation of Law. (Juridical Hermeneutics.) · Vol. I, Pt. I, Tr. III, Ch. III, Art. VII, § 1. On Simple Interpretation

St. Alphonsus, I, n. 200; ed. G., I, p. 178; Suarez, de Leg., l. 6, c. 1; Reuter, Theol. mor. Prodrom.; Sweens, Theol. mor. fund., n. 394; Ami du Cl., 1903, p. 161 ff.

n. ¶166.

Interpretation of law, taken broadly, is the genuine explanation of law according to the mind of the legislator. Thus defined, it comprehends both interpretation properly so called and epikeia: concerning these we shall discuss in a twofold article.

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. III, Article I: On Interpretation Properly So Called

n. ¶167.

DEFINITION. Interpretation, strictly taken, is a clearer exposition of those words which are obscure or ambiguous.

DIVISION. Interpretation of law is distinguished in many ways:

By reason of object, one is declaratory, or comprehensive, which declares obscure words of the law; another is extensive, which extends the law to similar cases; another finally is restrictive, which confines the law to certain designated cases, although it seems general, for example if a prince declares that the word clerics extends to tonsured men alone, but not to those who have ascended to higher orders.

Comprehensive interpretation is named purely such. It is in the law from the beginning: for example, if the discourse is about sons, even illegitimate sons are comprehended under this word. Extensive interpretation is called not purely such, because the sense is not clearly imbibed in the law, for example, that under the name of father, even grandfather, under the name of dead, even civilly dead, ought to be understood.

By reason of cause, one is authentic, another usual, another doctrinal, concerning which one must treat especially.

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. III, Art. I, § 1. On Authentic Interpretation

n. ¶168.

DEFINITION. Authentic or juridical interpretation is that which is made by the legislator himself, or by his successor, or Superior. It is called authentic, or brought forth with authority, because, in making it, the Superior uses the power of jurisdiction. It is also called the declaration of the legislator (H. Ap., II, n. 73).

Hence it is inferred: 1. Interpretation is not authentic, but doctrinal, if the Superior only declares his mind as a private person.

Interpretation can be made by the legislator both through himself and through others to whom this office is committed. The Sacred Congregations of Cardinals, by delegation and mandate of the Supreme Pontiffs, exercise such an office of interpretation.

n. ¶169.

PRINCIPLE. Authentic interpretation has binding force, without new promulgation, if it is comprehensive and restrictive; after new promulgation, if it is extensive.

The reason of the first: Such interpretation is not a new law, but has been imbibed in the law from the beginning: therefore in order that it oblige, it suffices that the declaration be divulged.

The reason of the second: It is not clearly present in the previous law; from the argument it could indeed be drawn from the law, but it was not drawn firmly. Therefore the law remained doubtful. Hence new promulgation is necessary. See St. Alphonsus, III, n. 1027; ed. G., II, p. 408; H. Ap., II, 74.

Note. Nevertheless authentic divulgation, in the case of comprehensive and restrictive interpretation, is always required: namely so that judges can safely either protect the exempt or proceed against those resisting.

What therefore must be thought concerning the various decrees, sentences, or decisions of the Roman Congregations?

Resp. 1. Decrees edited for the universal Church and rightly promulgated obtain the force of law; for they are not promulgated unless the Pontiff commands.

But particular decrees are at least a norm of how one may act fittingly, for the whole Church. They found a truly probable opinion.

Sentences, of whatever nature they may be, bind those to whom they are directed. But judicial sentences, of themselves, are not to be extended to similar cases: for they are various according to the variety of circumstances, nor is it always easy to know what circumstances impelled the sentence; whence a transfer to similar cases could be fallacious.

Nevertheless, uniformity of decisions in similar cases induces the style and practice of the Curia. But the practice of the Curia is held as a very strong argument in law.

Extensive declarations or decisions, which establish new right, need promulgation in order that they have the force of law: for they follow the nature of law. But as to merely comprehensive declarations of some universal law, the opinion today common holds that the force of law is present in those declarations, provided there is certain evidence concerning their authenticity. The reason is that new laws need promulgation, but not declarations concerning laws already promulgated. "Declarations of this kind," says St. Alphonsus (2 El. q. reform., n. 2; Istruz. prat., II, 39), "which have already been universally divulged in the Church and thus promulgated in fact, by the use of many years or by the report of authors commonly referring to them, these sufficiently bind all the faithful." And thus is the practice of the Roman Curia (cf. Bouix, de Cur. Rom., P. III, c. 7; Palaus, tr. 3, disp. 5, punct. 3, § 1, n. 2).

Those authors think less rightly who suppose that declarations, even comprehensive ones, of some universal law of themselves need promulgation, led by this reason, that while controversy stands among doctors, the universal law is not perspicuous, and therefore declarations of the Roman Congregations truly establish new right. Cf. Genicot, I, n. 137, and D'Annibale, I, n. 184, note 5. They indeed admit our opinion in the case in which Roman declarations have already been universally divulged in the Church and received by use.

Restrictive declarations do not need promulgation: for by them, far from a new right being established, there is derogated from a statute whose partial obligation is removed; but any obligation whatever ceases as soon as there is evidence concerning the will of the legislator.

Note. The decrees both of the Congregation of the Holy Office (or Universal Inquisition) and of the Congregation of Sacred Rites have special force. For:

The president of the Holy Office is not some certain Cardinal, as in the other Congregations, but the Roman Pontiff himself. Hence those things which are done through the Inquisition can more easily vindicate for themselves the authority of the Pontiff than those things which are done through the other Congregations. Nevertheless, they are not marked by the prerogative of infallibility through the mere presence of the Roman Pontiff as President of the Inquisition, or even through the approval itself; but only then when, approving in specific form, he has ordered some decree, which for the rest treats a matter to be infallibly decided, to be directed to the universal Church in his own name, and has taken care that it be promulgated. For infallibility is an altogether personal prerogative of the Roman Pontiff.
The Congregation of Sacred Rites, as we said n. 140, probably even when the Roman Pontiff has not been consulted nor approving, has the power of issuing decrees and interpreting laws. Yet from this do not infer that all responses of the same Congregation are laws, nor that all decrees are universal (cf. Collect. Gardell. 3, n. 5465).

But particular decrees which regard Rubrics pertaining to the universal Church obtain the force of a general decree or of City and World, so that they oblige everywhere, notwithstanding any custom to the contrary even immemorial (S. R. C., January 8, 1914; A. S. S., vol. 36, p. 428). See what is said below n. 1638.

Pius IV had devolved the office of authentically interpreting the laws of Trent to the Sacred Congregation of the Council alone. But now any Roman Congregation can interpret it in competent matter; indeed also the Tribunal of the Sacred Rota and the Apostolic Signatura, but these only in a particular case (A. A. S., III, p. 99).

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. III, Art. I, § 2. On Usual Interpretation

n. ¶170.

Usual interpretation is called that which has been received by use and custom. This can be various in various places, although the matter concerns a universal law, as will be evident from the things to be said concerning the law of fast. But doctors commonly assert that laws are to be interpreted according to the custom of the place, even if the words of the law must be taken less properly.

An interpretation of this kind is equivalent to an authentic one, and, if all the conditions are present which are required for constituting a legitimate custom, it produces altogether the same obligation. Hence the axiom: Custom is the best interpreter of laws (cf. n. 261). It is equivalent only to doctrinal interpretation if the custom has not yet been prescribed, or confirmed by the tacit consent of the legislator (I, 109; H. Ap., II, 82).

Note. To usual interpretation is referred JUDICIAL interpretation, or the practice of tribunals, whether civil or ecclesiastical, when this is constant and uniform; for, although the sentence of a judge makes right only between the litigants, nevertheless the uniformity of decisions induces a certain custom, to which the consent of the legislator tacitly gives support (Bouix, de Princip., P. II, sect. 6, c. 1, § 2, 4).

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. III, Art. I, § 3. On Doctrinal Interpretation

n. ¶171.

I. Doctrinal interpretation is a simple and private declaration of the mind of the legislator (I, 200).

This, of itself, does not obtain the force of law, since it is not made by one who has jurisdiction. Yet if almost all doctors agree in the interpretation of a law, moral certitude arises from this; the highest probability arises if very many and grave doctors agree; but if doctors, in almost equal number, go off into diverse interpretations, they must be weighed rather than counted. Recall what was said n. 63 ff.

II. It is lawful for any learned man to interpret laws doctrinally, provided it has not been prohibited by the legislator, and provided this is done according to the more received rules and the sense of the doctors. For since doubts often occur, and the legislator cannot always conveniently be approached, it was necessary to grant such a faculty to the wise.

Thus interpretations concerning the decrees of the Council of Trent are prohibited to private persons by Pius IV, as we noted above. Nevertheless, several doctors say that, by force of this prohibition, interpretations are not prohibited which would be made incidentally in some book, or orally or in writing, provided they are not committed to print; but only those which are made expressly through glosses, scholia, and commentaries given to print. For use has interpreted such a prohibition in this way (H. Ap., II, 75).

III. The rules of doctrinal interpretation are chiefly the following:

Attention is to be given to the PROXIMATE END of the law, or to the mind of the legislator. For that end is as it were the soul of the law, but the words are like its body.

Hence, if there is evidence concerning the mind of the legislator, one must stand by this more than by the bare words, as is clear from the condemnation of the Pharisees. Now the end of the law is understood both from its object and from the circumstances of times, places, and persons, and especially from the reason placed in the law, which namely impelled the Superior to make the law.

Attention is to be given to the FORM of the law, that is, to the manner in which it is expressed and promulgated.

In doubt, the words of the law are to be taken according to their proper sense, whenever something absurd or inequitable does not follow from this. But the proper sense can be either natural, such as is drawn from common use, and this is to be followed in penal and preceptive laws; or civil, which by legal fiction agrees with the words, for example, when under the name of legitimate son one who has been legitimated is also accepted, and this sense can be accepted in favorable matters. In a law expressed in general words, an exception is not to be made without a just and evident cause; for where the law does not distinguish, neither ought we to distinguish. But if something inequitable or absurd would follow from this, this other rule has force: "In order that the absurd may be avoided, the broadest interpretation ought to be made"; so that, if there is need, one must flee to an improper and metaphorical sense (cf. Porpora, tr. I, n. 364).

Attention is to be given to the MATTER of the law. For in odious matters a strict interpretation is to be made, in favorable matters a broad one. Understand this with the propriety of words preserved, whether natural or civil, as was explained above.

But to know whether a law is odious or favorable, attention must be given TO ITS PRIMARY MOTIVE (I, 200). Odious is whatever imposes an obligation or penalty, or injures the right of a third party, or is opposed to common right, even if this yields to the favor of another. Hence positive precepts, censures, irregularities, impediments of matrimony, exemptions, dispensations, privileges against the law, incapacities in civil law, are of strict interpretation, nor ought they be extended to cases not expressly determined. Favorable is judged whatever indulges liberty, or grants grace, without detriment of private persons, or of the community, or of right itself. Hence privileges which are beyond the law, and all rescripts of grace, are of broad interpretation (cf. n. 253, 3).

Sometimes, however, the law must be extended even as to odious things, if namely the primary motive is the granting of favor, as for example in the law made against those striking a cleric (cf. n. 1329); and similarly it is to be restricted as to favors, if the primary motive was the imposition of a burden (Salmant., de Leg., c. 4, n. 31). Cf. St. Alphonsus, de Privil., n. 7.

n. ¶172.

Questions. QUERY 1. Whether a law ought to be extended from case to case on account of parity of reason?

Resp. 1. If the reason is not the same, but only similar, the doctors teach that extension is not to be made, unless the case is expressed in the law only for the sake of example.

Hence it is that in law generally it is not lawful to argue from parity, indeed not even a fortiori: for not the reason of the law, but the will of the legislator manifested to subjects, has the force of law. Hence that saying: the reason of the law is not the law. Thus suspension, which by the statute of a Bishop is inflicted on clerics guilty of drunkenness, does not affect those who have violated chastity; although impurity involves in itself a greater sin than drunkenness.

If the reason is not only similar, but adequately the same, namely in such a way that the legislator would have to be accused of imprudence or injustice if the law were not extended, extension is to be made; for then the case not expressed must rather be said to be comprehended in the law than the law to be extended to it, and the rule has force: "Where the same reason is present, there the same disposition of law runs."

This happens: 1. in correlatives, as in husband and wife: for what has been sanctioned concerning one, for example, as to rights with respect to matrimony, is judged also concerning the other, if the same reason proceeds for each; 2. in things equated, as are eggs and milk foods in the law of fast; election, presentation, provision, in benefices; 3. in connected things, as are deacon and subdeacon; 4. in contained things: thus he who can make a testament can also make legacies. Likewise a law which decrees something on account of more frequent use also comprehends a less frequent case. Hence the law of St. Pius V, permitting nuns to go out from the monastery on account of fire or epidemic, is judged to grant the same on account of flood and the invasion of enemies (I, 200; H. Ap., II, 78).

QUERY 2. How are condemned propositions to be interpreted?

Resp. St. Alphonsus (III, 760): "Regularly speaking, condemned propositions are to be understood as they lie, and in the rigorous sense intended by their authors."

It is said 1. as they lie, that is, separately from the context, when the words are clear and perspicuous; 2. in the intended sense, when the words of the proposition are obscure or ambiguous; 3. rigorous, that is, not beyond the propriety of the words, because we are involved in odious matters. Therefore they never receive extensive interpretation, unless an evident reason demands it. Cf. Viva, Thes. damn.; Reuter, l. c., n. 19.

Vol. I, Part First: On the First P…, Tr. II, Diss. II, Ch. III, Article II: On Epikeia

n. ¶173.

DEFINITION. "Epikeia is the at least probable presumption that the legislator, in some circumstance of things, did not will to oblige" (H. Ap., II, 77).

In this it differs from simple interpretation, that the latter elucidates obscure words of the law; but epikeia declares the mind of the legislator against the open words of the law.

I. There is place for epikeia if the law would otherwise be rendered either harmful or too onerous (I, 201; cf. 98, 99, 175). For in the former case the Superior could not oblige, hence epikeia is necessary. In the latter case, it is justly and prudently presumed that the Superior did not wish to oblige, although by strict right he could have done so: wherefore epikeia is then lawful, even if not always necessary, as if the matter concerns private right, which one doubting can renounce. Thus he is excused from hearing Mass who fears a notable loss of goods (cf. 223, 248). Read Salmant., tr. XI, c. 5.

Nevertheless authors add that the Superior must be approached beforehand, if this can be done. See Noldin, I, n. 144; Gopfert, I, n. 96, where there are many useful things.

n. ¶174.

II. Epikeia (defined broadly as above) has force not only in human laws, but also in natural laws, where the action can, from circumstances, be stripped of malice (I, 201).

Thus natural law dictates: You shall not commit theft; yet to escape death, it is lawful to take another's thing (cf. n. 129).

These things will be understood more fully from what is to be said concerning causes excusing from the law and concerning the cessation of law from within (n. 221, 256). Meanwhile it is useful to note that epikeia (or equity) is an act of a certain more sublime justice, better than strictly legal justice, which observes the words of the law (St. Thomas, 2.2, q. 120, a. 2, ad 2). Hence the adage of law: "In all causes, the reason of equity ought to be stronger than that of strict right," and that of Sacred Scripture: Do not be just overmuch (Eccles. 7:17); All your commandments are equity (Ps. 118:172). But equity is justice tempered by the sweetness of mercy, as St. Cyprian defines it (in Ferraris, v. Law, a. 5, n. 34).

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 5 passages

Vol. I, Pt. I, Tr. III, Ch. III, Article VII. On the Interpretation of Law. (Juridical Hermeneutics.)

n. 227.

227. The interpretation of law is necessary for a twofold reason: 1. because law (at least human law) is sometimes obscure, and the mind of the legislator is not established; 2. because a doubt can arise whether the law extends even to extraordinary cases perhaps not foreseen by the legislator. In the first case simple interpretation has place; in the other, epikeia comes into use. For the sake of clarity each must be treated separately.

Vol. I, Pt. I, Tr. III, Ch. III, Art. VII, § 1. On Simple Interpretation

n. ¶43.

Definition. Interpretation is the genuine explanation of a law, or in other words: the explanation of the will of the legislator or the exposition of the legal obligation.⁹ Therefore interpretation properly so called of itself establishes nothing new, but only manifests more clearly that which was already contained in the law. Hence extensive or restrictive interpretations (concerning which below) are rather modifications than interpretations of law.

⁹ "Interpretation of the content of the law" (Auslegung des Gesetzesinhaltes).

n. 228.

228. Divisions. Interpretation can be divided a) by reason of the author and b) by reason of its character.

a) By reason of the author there is distinguished:

1. Authentic or legal interpretation, which is given by the legislator himself, or his successor, or by him to whom the power of interpreting has been committed by them.¹⁰

2. Usual interpretation, which proceeds from custom legitimately introduced among the people. In this sense there is the well-worn adage: "Custom is the best interpreter of laws."¹¹ Later, indeed, discussion of custom will return, but already now it should be noted beforehand that no custom except one which is according to or besides the law can truly interpret the law; but a custom which is against the law no longer interprets, but abolishes the law. - Similar to usual interpretation is judicial interpretation, which is also called jurisprudence or the authority of things similarly judged.

3. Doctrinal interpretation, which is given by learned and God-fearing men.

b) By reason of character it is customary to distinguish:

1. Comprehensive or declaratory interpretation, which declares that which is really contained in the law that has been made; for example, the law concerning Mass in another's church had been made for all priests and churches; since nevertheless a doubt had arisen whether exempt regulars also were included in this law, the answer was given by comprehensive interpretation: regulars are included.

2. Extensive, or ampliative, interpretation, which extends the law that has been made more broadly than it had hitherto obliged.¹² Thus, for example, Pius X extended the excommunication against those "compelling clerics to a secular tribunal" even to private persons, thus declaring the sense of the bull Apostolicae Sedis.

3. Restrictive interpretation, which restricts the law that has been made more narrowly than it had hitherto been in force.¹³ Thus the Sacred Congregation of the Inquisition on 23 January 1886 had limited the same excommunication just cited, by restrictive interpretation, to legislators and other authorities.

¹⁰ Cf. Cod. iur. can. c. 17, § 1; c. 31, X, 5, 39: "Whence the law has proceeded, thence also interpretation should proceed." L. 12, Cod. 1, 14: "It belongs to him to interpret the law, to whom it belongs to establish it."

¹¹ L. 37, Dig. 1, 3; Cod. iur. can. c. 29.

¹² Cf. L. 195, Dig. 50, 16.

¹³ Cf. L. 3, § 1, Dig. 26, 1.

n. 229.

229. Principle. Authentic interpretation has the force of law and therefore obliges like the law itself; but usual and doctrinal interpretation, which, while the legislator himself is silent (who can easily object), is brought into practice, is to be admitted and observed.

The reason for the first part is obvious; for just as the legislator was able to establish a law, so he can authentically declare the established law. Concerning this matter the Code of Canon Law c. 17, §§ 2 and 3 establishes: "Authentic interpretation, presented in the manner of law, has the same force as the law itself; and if it only declares words of the law which are certain in themselves, it does not need promulgation and has retroactive force; if it restricts or extends the law or explains a doubtful law, it is not retroactive and must be promulgated. - But when given in the manner of a judicial sentence or of a rescript in a particular matter, it does not have the force of law and binds only the persons and affects the things for which it was given." - The Supreme Pontiff can authentically declare not only the whole ecclesiastical law, but also divine and natural law. The reason is that the Supreme Pontiff, as Vicar of Christ, has the fullness of the power of ruling and directing the people to the supernatural end, which indeed cannot be obtained except by rightly understanding and observing natural and divine law. Hence the Pope has authentically interpreted the natural and divine law concerning divorce, namely that complete divorce is not licit on account of adultery, as that text of the Gospel at least seemed to suggest: "Whoever shall put away his wife except on account of fornication, and shall marry another, commits adultery."¹⁴ - Conversely, the Supreme Pontiff declared that complete divorce of a ratified marriage is licit on account of solemn profession and on account of Pontifical dispensation.¹⁵ - Authentic interpretation of the Code of Canon Law was entrusted to a special Commission of Cardinals instituted by Benedict XV on 15 September 1917 (Act. Ap. Sed. IX 584). - A bishop can indeed authentically interpret diocesan laws, but not the laws of a provincial Council, unless this has been expressly committed to him.

The reason for the second part of the stated principle is both that custom according to law is the best interpreter of laws, and that learned and God-fearing men can very well perceive the true sense of the law; and their concordant opinion is of great weight, so that it would be unsuitable to think otherwise.

¹⁴ Matt. 19, 9.

¹⁵ Cf. below in the treatise on marriage III, n. 681.

n. 230.

230. The rules to be observed in doctrinal interpretation are chiefly five:

1. Laws are to be understood according to the proper signification of the words considered in the text and context.¹⁶

This is plain of itself. Clear words of the law do not admit interpretation or conjecture of will; general words are to be understood generally; where the law does not distinguish, neither ought we distinguish; an indefinite expression is equivalent to a universal one. Since in ecclesiastical law, as in any science, there are found forms of speaking and writing alien to common use and known only to experts in law, commonly "technical terms," the signification of the words must be carefully considered.

2. If the words of the law are doubtful or obscure, recourse must be had to parallel places of the Code, if there are any, then to the proximate end of the law and circumstances, and to the mind of the legislator.¹⁷

The proximate end of the law is, as it were, its soul. Hence Sacred Scripture says:¹⁸ "The letter kills, but the spirit gives life." - The proximate end of the law and the mind of the legislator are known both from the explicit manifestation of the legislator and from the object, circumstances, and motive of the law.

3. It is fitting that burdens be restricted and favors enlarged.¹⁹

In other words: An odious law is to be interpreted strictly, but a favorable law broadly. But which law is odious and which is favorable cannot always be easily distinguished. As a good distinctive sign there is held: A law is odious when its immediate effect is a grave burden and rather bitter medicine than nourishment. Thus penal laws generally are held as odious, because their immediate effect is a grave burden; likewise censures are held as odious laws and therefore are of strict interpretation. A favorable law is that which contains a grace and establishes nothing against the strict right of a third party. Such a favorable law is, for example, the law of exemption of regulars, because it conduces not only to the good of regulars, but also to the good of the whole Church, and is not against the strict right of the bishop. It sometimes happens that a law which is favorable to one is odious to another, as, for example, many privileges are. Then the special statutes must be attended to.

4. In obscure matters the minimum is to be followed.²⁰

This rule is also customarily expressed thus: A doubtful law does not oblige. Concerning the sense, however, of this latter adage, discussion will return in the treatise on conscience. But the reason for this rule is that law is judged to be a binding of liberty. Moreover no doubtful, uncertain, and obscure moral binding ought to be admitted. Hence, for example, since it is not altogether clear that Socialists plotting against kingdom and priesthood fall under that censure: "Those giving their name to a masonic sect, or to other associations of the same kind which plot against the Church or legitimate civil powers ...," in practice Socialists do not incur this censure.

5. A later special law derogates from an earlier general law; but conversely a later general law does not derogate from an earlier special law, unless, however, this is specially and clearly established.²¹

The reason for the first part is that a special law is judged to be an exception from the common law. But the reason for the second part is that a common law is not judged to derogate from particular laws, since these are held as privileges and favors. Hence, for example, a special law given for the Seminaries of Italy derogates from common laws made concerning this matter; on the contrary, the general law concerning the interstices to be observed in the reception of Sacred Orders does not derogate from the privileges of several religious orders concerning this matter. But if the legislator by a general law wishes to abrogate particular laws, he is wont to use these or similar formulas: "All privileges and particular contrary laws whatsoever being abrogated, even those worthy of special mention."²²

¹⁶ Cod. iur. can. c. 18.

¹⁷ Ibid.

¹⁸ 2 Cor. 3, 6.

¹⁹ Thus Rule of Law 15 in VI; cf. Cod. iur. can. c. 19.

²⁰ Thus Rule of Law 30 in VI.

²¹ Cf. Cod. iur. can. c. 22.

²² Joan. Crus O. Pr. treats more broadly of the interpretation of laws and privileges, De statu relig. et de privilegiis, Venice 1620, l. 2, c. 2.

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 6 passages

Vol. I, TREATISE ON LAWS, FIRST PART: ON LAWS IN GEN…, Ch. VI, § I. On the interpretation of law

n. ¶140.

Definition. - Interpretation is the definition of the sense which certain more obscure words have in a law. I said: more obscure; for where the words of a law are clear, there can be no place, as is plain of itself, for interpretation properly so called, but only for epikeia.

n. ¶141.

- Division. I. By reason of the cause by which it is made, it is either 1° authentic, which is also called juridical and authoritative, and is made either by the legislator (or his superior or successor), for all subjects, or by a judge between litigating parties, - or 2° usual, which exists from legitimate custom, - or 3° doctrinal, which is made by learned men. Thus authentically the Pope, or the Congregations deputed by him for this, interpret all ecclesiastical laws; - the Bishop his own statutes or those of his predecessors; - the legislative assemblies among us civil laws, and the judge doubtful cases. You have an example of the usual in the quantity of food which by custom is permitted on a fast day for the evening collation; but of the doctrinal in the opinions of Canonists and Moralists concerning the sense of various ecclesiastical laws.

n. ¶142.

- II. By reason of the mode in which it is made, it is 1° strict or broad, according as it is made strictly according to the natural propriety of the words, or broadly according to a more benign sense; 2° simple or comprehensive, namely when the sense declared does not depart from the proper and customarily received signification of the words, or extensive, when beyond that which the words properly and according to the common sense taken denote, it concedes, prohibits, dispenses, etc. You have an example of strict and at the same time comprehensive interpretation, if by the word father is understood that one alone from whom someone proximately descends by birth; but broad and extensive, if in favorable matters also the grandfather. - The sign of comprehensive interpretation is generally the word we declare; of extensive, we decree.¹

n. ¶143.

Principles. - I. Authentic and usual interpretation has the force of law, since it is made either by the legislator himself, or by his authority, if it is given by a judge, or by his consent, if the discussion is about usual interpretation.

II. Authentic interpretation which is made by the legislator or his superior or successor obliges all subjects; that which is made by a judge obliges of itself only the litigating parties. I said: of itself only the litigating parties; for it can happen that as doctrinal it also obliges others.

III. Authentic extensive interpretation has no force unless it is legitimately promulgated; for by the very fact that it is not contained in the words of the law, it is a certain new law, and therefore must be promulgated in the manner of laws. But comprehensive interpretation, since it is not a new law, does not need promulgation, unless it is made by a successor or superior. I say: unless, etc.; for since the mind of the legislator is not as clearly known to these as to the legislator himself, they must recur to arguments and interpretations in order to investigate it; and these, since they introduce, as it were, a new law, need new promulgation.¹

IV. Doctrinal interpretation is worth only as much as the reasons alleged by the Doctors. Cf. what was said at n. 55.

n. ¶144.

Rules of doctrinal interpretation.

A. The words of the law are to be accepted according to their proper and customarily received signification, unless something absurd or unjust would follow from this. For since law ought to be clear, the legislator is to be presumed to speak in that sense which the words have from the common acceptance of men. Thus the law by which those who have laid violent hands on a cleric are excommunicated is deservedly judged to include also those who have struck him with the foot.

B. A law speaking generally includes all proper significations, or "where the law does not distinguish, neither ought we to distinguish," except if, as was said just now, something absurd or unjust would follow unless a distinction were made.

C. In doubt concerning the true sense, attention must be paid to the mind of the legislator, to the end of the law, and to antecedent or consequent circumstances. But the end of the law is ordinarily discerned from the proemium of the law itself.

D. A penal and odious law is to be strictly interpreted in doubt; but a favorable law broadly. Hence the axiom: Favors are to be amplified and odious things restricted. Thus, if the penalty of excommunication is laid against a homicide, it will not affect him who inflicted a grave wound, although with the intention of killing, if death in fact did not follow. But a law granting the faithful intercourse with those who have not been excommunicated by name is explained most broadly.

E. In law it is not licit to argue from an equal case, indeed not even from the stronger case; for not the reason of the law, but the will of the legislator made known to the subjects, has the force of law. Hence this: The reason of the law is not law. Thus a suspension which by diocesan statute is threatened against clerics guilty of drunkenness does not affect those who have violated chastity, although the offense is graver, - and an excommunication brought against members of a secret society cannot be extended to those who have conspired for the death of an innocent man.

n. ¶145.

- Make exception, if not only the same, but the same and adequate reason at once runs in the equal case, so that if the law were not extended to the equal case, the legislator would have to be accused of injustice or imprudence; for then that rule of law has force: where there is the same reason, there the same disposition of law runs. But this happens:

1° In correlatives, for example, between bridegroom and bride; hence since the bride is freed from the obligation of betrothal because of the long absence of the bridegroom, the bridegroom is likewise freed because of the absence of the bride.

2° In things equated, as eggs and milk foods are with respect to the law of fasting.¹

3° In connected things. Thus, for example, since a testament is by its nature revocable, to those to whom the law permits making a testament, it also permits revoking it.

4° In things contained. Wherefore he who can make a testament can also make a legacy.

What has been said has no force concerning penal law. St. Alph., L. IV, 473.

On the interpretation of laws cf. Kent.²

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 40 passages

Vol. I, General Moral Theology, Treatise: On Laws in General, Section B: On the Laws Whi…, Fourth Part: On Human and …, Second Question: On the Po…, Article IV: On the Fulfillment and Interpretation of Human Law · Vol. I, General Moral Theology, Treatise: On Laws in General, Sect. C, Sixth Part: On Ecclesiasti…, Second Question: On the Po…, Article VII: On the Interpretation of Ecclesiastical Law

Vol. I, General Moral Theology, Treatise: On Laws in General, Section B: On the Laws Whi…, Fourth Part: On Human and …, Second Question: On the Po…, Article IV: On the Fulfillment and Interpretation of Human Law

St. Thomas, I-II, q. 96, a. 6; q. 97, a. 3, ad 2; II-II, q. 60, a. 5, ad 2; q. 120.

n. 293.

293. In what way law is to be fulfilled. - The human legislator does not directly prescribe the internal mode of virtue, but the conservation of social order; whence he prescribes only the substance of the act commanded and is content with physical or external fulfillment, although he can intend the good of virtue. For the end of a precept does not fall under the precept; nor therefore, per se, does the (extrinsic) mode of fulfilling the precept, unless the mode is of the substance of the precept (intrinsic).

n. 293.

These things will be declared more where there is discussion of ecclesiastical law.

294. In what way law is to be interpreted. - But in order that it be rightly fulfilled as it ought, law often needs interpretation. Namely, human law cannot be so perfectly set forth that it excludes every doubt about its meaning, and therefore it often needs interpretation, either on account of the weakness of human talent, or on account of change of circumstances and morals.

Interpretation is a clearer determination of the mind or words of the legislator. By reason of value or efficacy it is twofold: authoritative, which is imposed with authority, and merely directive, which can also be made by private persons. But by reason of cause or author it is fourfold:

Authentic or legal, which is made authoritatively by the ruler of the community himself as such, who is deservedly judged to know the sense of the law better and therefore enjoys authority of interpreting: it is made by the legislator himself, or by his successor or superior, or also by another specially designated for this (as happens in France, by the Council of State), and it has the same force as the law itself.

In our country, art. 28 of the Belgian Constitution has force: "L'interpretation des lois par voie d'autorite n'appartient qu'au pouvoir legislatif."

Usual, which is made by general observance of the community, or by the use and custom of the people, which is therefore called the best interpreter of laws. Moreover one custom is antecedent to the law, and this can have force for detecting the sense of a law which is usually borne according to custom; another concomitant is the mode of observing the law, and this has force as a sign and witness for recognizing the mind of the legislator, because it displays the common sense of subjects, which, although it is not authentic, nevertheless has more force than doctrinal interpretation because several agree in it; another subsequent custom, given the conditions, can define or extend a preexisting obligation, just as it can introduce or remove it (as we said in n. 273): then it is authoritative. Nevertheless in present-day civil law the force of custom for interpreting law authoritatively is not admitted, just as neither for introducing or abrogating it.

Judicial, which is made authoritatively by judicial power in order to a special cause, namely, by applying law to a particular fact: it is authoritative as to the litigants; as to others it has only the private authority of the judge, so much the greater as he excels in greater knowledge and the interpretation is more often repeated, yet, other things being equal, greater than if it is given by a private doctor.

Doctrinal, which is not authoritative and therefore of itself not obligatory, but is supported by science and directive, and is made by private doctors or jurists according to the rules of critical art. It is so much greater as their number, excellence, and arguments are greater; but if all agree in the interpretation, it would be rash to spurn it.

n. 295.

295. How many kinds interpretation is.

n. 295.

By reason of character or of the mode by which it is made, interpretation is simply declarative or comprehensive, which merely declares the words and sense of the law and adds or subtracts nothing, whether it declares more or less clear things, or even elucidates more obscure things: this can be made by all, even private persons; or supplementary, which adds what is lacking to the sense and words of the law, and is either extensive, which adds an obligation previously not expressed or intended, and therefore needs promulgation, or restrictive, which removes either one: this, like the law itself, can be made by the authority of the legislator, and by custom when the consent of the legislator can be presumed.

296. Interpretation by epikeia. - Even a subject of the law, in rare particular cases, can make a certain quasi-restrictive interpretation and licitly act beyond the words of the law, when these, namely, would be harmful to the common good. For law obligates insofar as it is ordered to the common good, and does not obligate if it departs from this. But it happens that something is useful generally and in the greater number of cases, and in certain cases is harmful; but because the legislator cannot foresee all cases (nor can law enumerate all cases, because it would become more obscure), law is proposed according to that which happens in the greater number of cases, for the sake of the common good.

Therefore, in a case in which observance of the law is harmful to the common good, it is not to be observed; for the legislator is rightly judged not to have willed to include that case in the law, just as a law concerning the gates of a town to be closed would not be applied to a citizen who would be very useful for defending the city, and a law which prohibits carrying arms does not obligate him who is sought by an enemy for death.

A right judgment concerning the circumstances in which law does not obligate, and a moral virtue inclining (under the direction of prudence) to acting rightly according to such a prudent judgment (which pertains to legal justice), is called epikeia, that is, equity, kindness, moderation, which interprets and judges and applies laws according to the equitable and good, that is, according as the reason of justice and the common utility demand. "In theological usage it designates a certain explanation of law which is made from equity, a benign interpretation and prudent moderation of law beyond the rigor of the words, by which it is judged that the law does not extend to some particular case on account of its special circumstances, although the legislator's words, as they sound, contain even that case." It can be defined: an equitable and benign interpretation of law, or a prudent moderation and restriction, by which against the words or sense of the law we follow the habitual mind of the legislator.

Thus Leroux in Revue Ecclesiastique de Liege VII, n. 4 (January 1901).

It is twofold: one broadly so called does not exceed the limits of simple interpretation drawn from circumstances, and has place not only in positive law but also in natural law (for example, deposits are to be returned); another strictly so called contains an emendation of law and has place in human law alone. And this differs: a) from simple interpretation, which explains obscure words and inquires whether in this or that sense those words are to be taken, so that they comprehend these or those cases: this follows the literal sense of the law and the mind which the legislator had; that departs from the words and the clear literal sense of the law and follows the mind which the legislator would have had, or reasonably ought to have had, if he had foreseen the case; b) from simple cessation of the end: for by this the law ceases universally and indeed negatively or contradictorily because its end is lacking; but by epikeia it does not obligate in a particular case and indeed contrarily because the law is rendered harmful or too burdensome; c) from dispensation: for this is an act of jurisdiction by which the legislator dissolves the bond of the law in a special case to which otherwise the law would be applicable; but epikeia pronounces that such a case was never comprehended in the law, although it is comprehended in the words.

297. Epikeia strictly so called has place whenever the law is 1) harmful or evil, for example, if it cannot be observed without sin; or 2) so impeditious of good or very burdensome and too difficult that it could scarcely be imposed by an equitable legislator; or 3) not so burdensome and difficult that it could not be imposed, but nevertheless, the circumstances being inspected and especially the ordinary mode of commanding with moderation, it is presumed that such was not the mind of the legislator. But ordinarily it is not given in invalidating laws on account of the common good.

The interpretation of epikeia can be made by any private person if the cause is evident; if it is doubtful, the superior is to be approached, because it pertains to him to interpret what is useful or useless to the community, whence on account of such cases he has the power of dispensing: for it is disordered to pass beyond the words of the law where the will of the legislator can certainly be known, and in doubt concerning the liceity of an act, we must, insofar as we morally can, arrive at certitude (n. 213 and 214, 4). But if there is a cause which does not allow the delay of recourse to the superior and is sufficiently founded (so that there is positive doubt whether the law still obligates), necessity itself dispenses, which has no law: then, namely, it suffices that probably the law has ceased to obligate.

By present-day civil law, however, epikeia is admitted with difficulty, except in a case in which it would evidently harm the common good directly. Namely, the legislator restricts it to the least possible, and judges it better to observe the law, even if it is burdensome to one or another, on account of the example of others.

Vol. I, General Moral Theology, Treatise: On Laws in General, Sect. C, Sixth Part: On Ecclesiasti…, Second Question: On the Po…, Article VII: On the Interpretation of Ecclesiastical Law

n. 367.

367. Ecclesiastical law, as being human, often needs interpretation, which can be merely declaratory or comprehensive, or extensive and restrictive, and by reason of the author by whom it is made, it is denominated authentic or legal, usual, judicial, or doctrinal (cf. n. 294). Moreover in ecclesiastical right not only legal interpretation is authoritative, but also usual interpretation from the subsequent use of the law, once the conditions required for custom have been given, concerning which we shall speak below (can. 27-29); likewise judicial interpretation, but only as to the parties of the case; doctrinal interpretation, however, is merely private.

368. The Supreme Pontiff can delegate the Roman Congregations to interpret laws authentically, from a special mandate, or even from a general mandate, such as he gave to the Congregation of Rites for laws pertaining to rites, and to the Congregation of the Council for the decrees of Trent regarding morals and discipline; now, however, according to the constitution Sapienti of June 28, 1908, each exercises this right for the competence committed to it, the approval of the Roman Pontiff being saved (can. 244); moreover a special commission was instituted for declaring the canons of the Code (from the motu proprio of September 15, 1917). Their acts do not enjoy the same authority, but such and so much authority as they themselves attribute to individual acts.

For:

Either they issue a solemn and general decree, approved by the special authority of the Pontiff, by which they settle a controversy: it has the same force as law and can also extend it.

Or, under approval in common form, they hand down resolutions, declarations, and general decisions, by which they expressly explain the sense of the law: these are merely declarative but authentic interpretation, which is valid for all cases.

Or they give responses to doubts proposed for a particular case, without issuing a general decree: these are authoritative in relation to the case proposed and for the persons whom it regards, like judicial interpretation (can. 17, § 3). For others and with regard to similar cases they are not authoritative interpretation nor per se obligatory; nevertheless they exhibit a probable and prudent manner of acting and have a doctrinal value greater than if it were given by private doctors, and greater in proportion as it rests upon firmer arguments, has been repeated more often, and the cases occurring are more similar. Indeed, if there were a uniform, general, constant practice, it would be wrong to contradict it: then the contrary would not be probable; whence in responses there is sometimes added: "with attention to the constant practice of the Sacred Congregation."

n. 369.

369. Does interpretation need promulgation? - Authentic extensive (or also restrictive) interpretation requires a new promulgation, because in reality it is an extension (or change) of obligation which was not contained in the law, or a new law in relation to some point: such an interpretation made by him who is deputed simply to interpret laws does not have the force of law, unless it is given from a special mandate of the legislator and is legitimately promulgated by him, as usually happens for decrees of Congregations (can. 17, § 2).

n. 369.

Comprehensive interpretation, which declares a sense that is sufficiently clearly contained in the law or necessarily drawn out of it, does not require promulgation because it was sufficiently promulgated with the law; but that which declares a sense which is obscurely contained, so that before and of itself it was doubtful or only probable, requires a new promulgation. According to natural right this can be disputed: according to others it does not require promulgation because it does not establish a new law, but uncovers the sense which previously lay hidden; according to others it requires it because that which was doubtfully or probably contained in the law was not sufficiently promulgated, whence the law was not totally promulgated. But with regard to the new ecclesiastical right, it must be promulgated from can. 17, § 2.

370. Doctrinal interpretation must be made according to the rules established in law; namely:

"Ecclesiastical laws are to be understood according to the proper signification of the words considered in the text and context; but if this remains doubtful and obscure, recourse must be had to parallel places of the Code, if there are any, to the end and circumstances of the law, and to the mind of the legislator" (can. 18).

"Laws which establish a penalty, or restrict the free exercise of rights, or contain an exception from the law, are subject to strict interpretation" (can. 19).

"If concerning a certain matter an express prescription of law, whether general or particular, is lacking, the norm is to be taken, unless there is question of penalties to be applied, from laws enacted in similar matters; from general principles of right observed with canonical equity; from the style and practice of the Roman Curia; from the common and constant opinion of doctors" (can. 20).

"Laws enacted to forestall a general danger urge, even if in a particular case the danger is not present" (can. 21).

"A later law, enacted by competent authority, derogates from a prior one, if it expressly says this, or is directly contrary to it, or orders anew the whole matter of the prior law; but a general law (of itself) in no way derogates from the statutes of special places and singular persons, unless something else is expressly provided in it" (can. 22).

"In doubt, the revocation of a pre-existing law is not presumed, but later laws are to be drawn to earlier ones and, insofar as it can be done, reconciled with them" (can. 23).

371. Ecclesiastical law admits the private interpretation of epikeia, and indeed in a threefold case: 1) if the law in a particular case becomes harmful or evil, e.g., if it cannot be observed without sin, as if you wished to leave a sick person wholly needing your help for the sake of Mass;

if it is impeditious of good, or very burdensome and too difficult to be urged by an equitable legislator, as if it exceeds human powers or causes grave disproportionate damage, e.g., if one gravely sick were bound to fast;

even if it is not so burdensome that it cannot strictly be imposed, if, after the circumstances of time, place, persons, and especially the ordinary mode of commanding with moderation have been inspected, it is presumed that such was not the mind of the legislator: thus you are not bound to hear Mass lest a great extraordinary profit have to be lost.

But ordinarily epikeia is not given in invalidating laws, on account of the common good, from which no ignorance excuses, unless it is expressly said (can. 16, § 1).