The sources of Church law

We saw above that the Catholic Church has received from her divine Founder full and independent authority to make laws, binding upon all her children in matters which pertain to religion and the salvation of souls. She has constantly used this power which Jesus Christ gave her. Various collections of Church law were made from an early period in her history, but those which are contained in the Corpus Juris are the most celebrated. The Corpus Juris is usually divided into two volumes. The first contains the Decretum of Gratian, a Benedictine monk, who composed his work about the middle of the twelfth century. It is a private collection, and so the documents of which it is composed have only the authority derived from their origin, unless custom or subsequent approbation has given special canons greater weight. The second volume, on the contrary, contains several official collections, made by the authority of the Holy Decretals of Gregory IX, the Sext, See. These are the and the Clementines. Any papal constitution contained in these collections has authority from the very fact of its insertion in the Corpus Juris, ‘The second volume also contains the Extravagants of John XXII, and the Common Extravagants, both of which are private collections, although inserted in the Corpus Juris.

The Corpus Juris contains the ancient law of the Catholic Church, which has been modified and accommodated to the times by more recent councils and constitutions of the Holy See. The Council of Trent especially made many changes demanded by the altered circumstances of the times, and the Popes have at different times issued a great number of constitutions and laws to meet the constantly changing wants of the Church. These constitutions are usually quoted by giving the Pope’s name and the initial words, together with the date of the document.

Early in the year 1904 Pius X ordered the common law of the Western Church to be codified. The work was finished and promulgated by Benedict XV on Whit Sunday, 1917. This new Codex Juris Canonici came into force on May 19, 1918. It has binding force throughout the Western Church, Besides the common law which binds the whole Church, each country, province, and diocese has its own special laws and customs. The four Councils of Westminster contain the special provincial laws which bind the Catholics of England and Wales.

329. Ecclesiastical legislation, which formerly was contained in the Corpus juris canonici¹ and in many other documents of the subsequent age, today is found in the Code of Canon Law, arranged by order of Pontiff Pius X, and promulgated by the authority of Pope Benedict XV, which had the force of obliging in its entirety from the day of Pentecost 1918, the 19th day of May.

¹ The best critical edition of the Corpus juris canonici was published by Richter, which afterward Friedberg polished and furnished with notes, Leipzig, 1879-1881: there you will find learned Prolegomena concerning the character and authority of the parts of which the Corpus juris consists. - The Corpus juris canonici consisted of six parts: 1. the Decretum of Gratian; 2. the Decretals of Gregory IX; 3. the Sixth of Decretals of Boniface VIII; 4. the Clementines of Clement V; 5. the Extravagants of John XXII; 6. the Common Extravagants.

(A) The scope of the Code was "to gather into one, arranged in a clear order, all the laws of the Church published up to these times; removing from it those which had already been abrogated or had become obsolete; adapting others, where there was need, more suitably to our present customs; and also establishing others anew, whenever it seemed necessary or expedient."

(a) It regards the Latin Church alone, and does not oblige the Oriental Church, unless there is question of those things which, from the very nature of the thing, also affect the Oriental Church (Can. 1).

(b) For the most part it decrees nothing concerning rites and ceremonies; wherefore all liturgical laws retain their force, unless some one of them is expressly corrected in the Code (c. 2).

(c) By the Code there are in no way abrogated conventions entered into by the Apostolic See with various Nations, nor privileges and indults granted to persons, whether physical or moral, unless they are expressly revoked by the canons of the Code.

(B) As to laws previously enacted, the Code decrees these things (c. 6):

"1. Any laws whatever, whether universal or particular, opposed to the prescriptions of this Code, are abrogated, unless concerning particular laws something else is expressly provided;

2. Canons which refer the old right in its entirety are to be judged from the authority of the old right, and therefore from the interpretations received among approved authors;

3. Canons which agree only in part with the old right, insofar as they agree, are to be judged from the ancient right; insofar as they differ, they are to be judged from their own meaning;

4. In doubt whether some prescription of the canons differs from the old right, one must not depart from the old right;

5. As to penalties of which no mention is made in the Code, whether they are spiritual or temporal, medicinal or, as they call them, vindictive, latae or ferendae sententiae, let them be held as abrogated;

6. If any of the other disciplinary laws which have flourished up to now is contained neither explicitly nor implicitly in the Code, it must be said to have lost all force, unless it is found in approved liturgical books, or the law is of divine right, whether positive or natural."

(C) Division of the Code. At the very threshold three things are found: (a) the Preface in which Cardinal Gasparri learnedly sets forth the history of collections of Canon Law, and clearly declares the reason and method of the Code; (b) the Constitution of Benedict XV promulgating the Code and decreeing that it has the force of law for the universal Church; (c) the Profession of Catholic faith to be emitted in certain circumstances.

The Code itself embraces 2414 canons distributed in five books.

In the first book are proposed the General Norms.

Book II treats of persons, namely clerics, religious, laymen.

Book III treats of things, namely concerning the sacraments in general and in particular; concerning sacred places and times, concerning divine worship, concerning the ecclesiastical magisterium, concerning benefices and other non-collegial institutes, concerning the temporal goods of the Church.

Book IV treats of processes, namely concerning trials, concerning causes of beatification and canonization, concerning the manner of proceeding in certain business or penal sanctions.

Book V treats of delicts and penalties.

There follow the Code eight documents, among which especially should be noted the Constitution of Pius X, Vacante Sede Apostolica, 25 Dec. 1904, where all those things are prescribed which are to be done while the Apostolic See is vacant.

336. Division of ecclesiastical right. - Ecclesiastical right is one thing when liturgical, which directly rules acts of divine worship; another when disciplinary, which directly regards the morals of the faithful: this latter, in the stricter sense, is called canonical.

Both were gradually elaborated, both from the prescriptions of Pontiffs and Councils, and from use and custom afterward confirmed in writing.

This was so especially for liturgical right, which already in ancient times was consigned to books. The things which regarded the Sacrifice were contained in the Roman and Gallican Sacramentaries, in the Antiphonaries or Graduals, in Lectionaries, Epistolaries, and Evangeliaries: from these three the Missal was afterward made. As to the Sacred Office, there existed the Psalter, Antiphonary, Hymnary, Codex of Sacred Scripture, Homiliary, Collectary, etc., from which diverse things were taken and united in the Breviary. For the administration of the Sacraments, Rituals are found, which were also called Manuals or Agendas.

Today liturgical laws are contained in five authentic books: the Missal, Breviary, Ritual, Pontifical, and Ceremonial; and in the decrees and declarations of the Sacred Congregation of Rites (can. 253). For certain matters, however, the Congregation of Ceremonial has competence (can. 254); and for the rites of the Oriental Churches, the Congregation for the Oriental Church (can. 257).

But disciplinary right existed at various times under various forms; recently the right of the Latin Church was codified. Concerning these things, certain more particular points are opportunely noted.

337. Division of older right. - Canon law was slowly formed in the course of the centuries. Before the most recent codification of right, it was distinguished into ancient right, which extends from the age of the Apostles up to the twelfth century, namely up to the Decree of Gratian (1140-1150); new right, which extends from the Decree of Gratian up to the sixteenth century, or to the Council of Trent (1545-1563); and newest or post-Tridentine right.

A. Ancient right. In the first centuries there existed collections and collections of canons, especially those issued by Councils, e.g., by Nicaea, and then also formed systematically. But about the middle of the twelfth century, the Benedictine monk Gratian undertook to collect all canons into one and to arrange a new and single collection of ecclesiastical laws, which afterward was called the Decree of Gratian, and by which, as it were, he laid the foundations of the studies of canon law.

The Decree is divided into three parts: a) the first consists of 101 Distinctions, and each distinction embraces several canons or chapters; b) the second part is divided into 36 Causes, the causes into questions, and the questions into canons; c) the third part, which treats On Consecration, that is, concerning rites and sacred things, is distributed, like the first, into Distinctions and canons.

B. New right is contained in the Corpus Iuris Canonici. It embraces:

1. The Decree of Gratian, which, although amended, nevertheless is not authentic, and therefore has no other authority than the sources themselves from which it was taken.

2. The Decretals of Gregory IX, which by order of this Pontiff were edited by St. Raymond of Pennafort, O.P. (1234). This collection is truly authentic and per se has the force of law; it embraces the letters of Gregory IX and of certain predecessors, and the Pontiff willed that it alone be used in judgments and in schools. It contains five books which are divided into titles, and the titles into chapters.

3. The Sixth Book of Decretals of Boniface VIII, which this Pontiff added (1298), authentically conferred with the same force and authority as the preceding ones. It consists of the same divisions as the collection of St. Raymond.

4. The Clementine Decretals, collected by Clement V and authentically promulgated by John XXII (1317), so that they have the force of law.

5. The Extravagantes of John XXII, so called because they wandered outside the previous collections, collected and edited by private zeal in the year 1325; they do not have the force of law as a collection, but only from the documents themselves which truly emanate from pontifical authority.

6. The Common Extravagantes, seventy in number, of other Pontiffs, collected by private authority around the end of the fifteenth century: they do not enjoy the authentic value of a collection, but only the value of the documents themselves.

C. Newest right is contained in the decrees and canons of general Councils, especially of Trent and Vatican, in the Constitutions of the Roman Pontiffs, in the Declarations of the Sacred Congregations and Tribunals of the Roman Curia, and in the Rules of the Apostolic Chancery.

To these almost innumerable laws there has now happily succeeded the Code of Canon Law, which, ordered by Pius X, was solemnly promulgated by Benedict XV on the feast day of Pentecost in the year 1917, so that it would have obligatory force from the day of Pentecost of the following year, that is, from May 19, 1918.

338. Division of the new codified right. - The Code of right is divided into five parts or books:

The first book hands down General Norms, especially concerning Laws, Rescripts and Privileges, and Dispensations.

The second book treats: concerning Persons, specifically concerning Clerics in general and in species, concerning Religious and concerning Laypersons.

The third book is: concerning Things, namely, concerning the Sacraments individually and in species, and sacramentals, concerning Sacred Places and Times, concerning Divine Worship, concerning the Ecclesiastical Magisterium, concerning Benefices and Ecclesiastical Institutes, and concerning the temporal Goods of the Church.

The fourth book treats concerning Processes, namely, concerning Trials in general and in species, concerning Causes of beatification and canonization, and concerning the Mode of proceeding in certain affairs to be examined.

The fifth book finally is concerning Delicts and Penalties.

339. The value of the Code is indicated by the Code itself.

Can. 1: "Although in the Code of Canon Law the discipline also of the Oriental Church is often referred to, nevertheless it regards the Latin Church alone, and does not obligate the Oriental Church, unless there is question of those things which from the nature of the matter itself also affect the Oriental Church."

Can. 2: "The Code, for the most part, determines nothing concerning the rites and ceremonies which the liturgical books, approved by the Latin Church, prescribe to be observed in the celebration of the sacrosanct sacrifice of the Mass, in the administration of the Sacraments and Sacramentals, and in performing other sacred things. Wherefore all liturgical laws retain their force, unless some one of them is expressly corrected in the Code."

Can. 3: "The canons of the Code in no way abrogate conventions entered upon by the Apostolic See with various Nations, nor do they derogate anything from them; these therefore will continue to be in force just as at present, the contrary prescriptions of this Code notwithstanding."

Can. 4: "Rights acquired by others, and likewise privileges and indults which, granted by the Apostolic See up to this time to persons whether physical or moral, are still in use and have not been revoked, remain intact, unless they are expressly revoked by the canons of this Code."

Can. 5: "Customs, whether universal or particular, now in force against the statutes of these canons, if indeed they are expressly reprobated by the canons themselves, are to be corrected as corruptions of right, even if they are immemorial, and are not to be allowed to revive in the future; others, which indeed are centenary and immemorial, can be tolerated, if Ordinaries according to the circumstances of places and persons judge that they cannot prudently be removed; the rest are to be held suppressed, unless the Code expressly provides otherwise."

Can. 6: "The Code for the most part retains the discipline in force up to this time, although it brings suitable changes. Therefore:

1. All laws whatsoever, whether universal or particular, opposed to the prescriptions of this Code, are abrogated, unless concerning particular laws provision is expressly made otherwise;

2. Canons which report the old law in its entirety are to be assessed from the authority of the old law, and therefore from the interpretations received among approved authors;

3. Canons which only in part agree with the old law are to be assessed from the ancient law where they agree; where they differ, they are to be judged from their own meaning;

4. In doubt whether some prescription of the canons differs from the old law, one is not to depart from the old law;

5. As regards penalties, of which no mention is made in the Code, whether they are spiritual or temporal, medicinal or, as they call them, vindicative, of latae or ferendae sententiae, these are to be held as abrogated;

6. If any of the other disciplinary laws, which have been in force up to now, is contained neither explicitly nor implicitly in the Code, it must be said to have lost all force, unless it is found in approved liturgical books, or the law is of divine right, whether positive or natural."