Subject-matter of Church Law

The Legislative Power of the Church, Its Object, and Obedience to It

"4. The proposition asserting that it would be an abuse of the authority of the Church to transfer it beyond the limits of doctrine and morals, and to extend it to exterior things, and to exact by force that which depends upon persuasion and the heart; and also, much less, that it pertains to her to exact by exterior force subjection to her decrees: insofar as, by those indeterminate words extending it to exterior things, it brands as an abuse of the authority of the Church the use of that power received from God which the Apostles themselves used in establishing and sanctioning exterior discipline: heretical. - 5. In the part in which it insinuates that the Church does not have authority to exact subjection to her decrees otherwise than by means which depend upon persuasion; insofar as it intends that the Church does not have a power conferred upon her by God not only of directing by counsels and persuasions, but also of commanding by laws, and of restraining and compelling the wayward and contumacious by exterior judgment and salutary penalties; from the Brief Ad assiduas of Benedict XIV, in the year 1755, to the Primates, Archbishops, and Bishops of the Kingdom of Poland: introducing into a system a doctrine otherwise condemned as heretical." Propositions of the Synod of Pistoia condemned by Pius VI.

"15. Ecclesiastical obedience is obedience according to the invention of the priests of the Church apart from the express authority of Scripture." Proposition of John Hus condemned by the Council of Constance.

"The laws of the Church do not bind in conscience unless they are promulgated by the civil power; - The acts and decrees of the Roman Pontiffs concerning religion and the Church require the sanction and approval, or at least the assent, of the civil power; - Apostolic Constitutions by which secret societies are condemned, whether an oath concerning the keeping of secrecy is or is not required in them, and their followers and supporters are punished with anathema, have no force in those regions of the world where associations of this kind are tolerated by the civil government; - The excommunication imposed by the Council of Trent and the Roman Pontiffs upon those who invade and usurp the rights and possessions of the Church rests upon a confusion of the spiritual order with the civil and political order, solely for the pursuit of worldly good; - The Church ought to decree nothing which can bind the consciences of the faithful in relation to the use of temporal things; - The Church has no right to restrain violators of her laws by temporal penalties; it is conformable to the principles of sacred Theology and public law for the civil government to assert and claim ownership of goods possessed by Churches, religious families, and other pious places. - Assent and obedience can be refused without sin and without any loss of Catholic profession to those judgments and decrees of the Apostolic See whose object is declared to pertain to the general good of the Church and to her rights and discipline, provided that it does not touch dogmas of faith and morals." Propositions condemned by Pius IX, Encyclical Quanta cura.

"That those who are in the aforesaid degree of perfection and spirit of liberty (namely, because they cannot sin or grow further in perfection) are not subject to human obedience, nor are bound to any precepts of the Church; because, as they assert, where the Spirit of the Lord is, there is liberty." Condemned as error, Clementine Ad nostrum, 3, De Haereticis.

Tanquerey

Adolphe Tanquerey, S.S. — 4 passages

Vol. II, Fundamental Moral Theology…, On Laws

n. 262.

§ II. Concerning the Object of Ecclesiastical Law.

1. The general principle is that the Church can make laws concerning all those things which regard the worship of God and the sanctification of man: "Whatever therefore in human affairs is in any way sacred, whatever pertains to the salvation of souls or the worship of God, whether it is such by its own nature, or again is understood to be such because of the cause to which it is referred, all that is in the power and judgment of the Church."³ For the power of any society is measured by its end; but the end of the Church is the attainment of eternal life through the worship of God and the sanctification of its members. - From this it follows that nothing dishonorable, nothing contrary to natural or divine right, can be prescribed.

³ Leo XIII, Encycl. Immortale Dei, 1 Nov. 1885.

n. 263.

1. Ecclesiastical law cannot command what is too arduous and difficult. For since it is enacted for the good of the community, it ought to be proportioned to the fragility of human nature; otherwise it would not promote the public good, but rather would be a very frequent occasion of sins. Concerning this, however, three things must be noted: (a) it is not repugnant that an arduous law be imposed upon some society or state which not all, but few, freely choose, as is, for example, the law of celibacy or poverty annexed to the clerical or religious state; (b) when the reason of the public good requires it, the Church can command even heroic acts, for example the administration of the sacraments in time of contagious disease; (c) judgment concerning the difficulty of the law belongs to the legislators themselves, not to the subjects: otherwise laws would be done away with.

n. 264.

1. But it is asked whether the Church can command internal acts. Here there is question not of the penitential forum, where the confessor, as minister of Christ, judges concerning internal things, and can enjoin merely internal works by way of satisfaction; but of the external forum, to which legislative power pertains.

(A) According to all, the Church can prescribe internal acts which are necessarily joined with external acts; for law directs only truly human acts, and therefore can be concerned with the internal dispositions necessary for a human act; thus, by commanding an oath, confession, communion, or the hearing of Mass, by that very fact it commands the internal acts necessarily joined with those external acts, namely the mind of swearing, attrition, the state of grace, attention.

(B) According to the common opinion, which we embrace, the Church cannot prescribe merely internal acts.¹ For (a) the judicial and coercive power of the Church cannot be exercised concerning internal acts, as Innocent III openly declared: "If their excess [of simoniacs] were manifest to the Church, which does not judge hidden things, they would have to be struck with canonical penalty";² and elsewhere he adds: "It has been given to us to judge only concerning manifest things."¹ But legislative power cannot proceed without judicial and coercive power: for it is required that the legislator be able to urge the observance of his laws by judgment and penalties; otherwise, his power would be contemned.

¹ Thus St. Thomas, Ia IIae, q. 1, a. 4; q. 100, a. 9; Suarez, De Legibus, l. IV, c. 12; Schmalzgrueber, in tit. de Const., n. 21; St. Alphonsus, lib. I, n. 100. Bouquillon, n. 114, with certain others, defends the contrary.

² Cap. Sicut, 33, de Simonia (lib. V, tit. 3).

¹ Cap. Tua nos, 34, de Simonia (lib. V, tit. 3).

(b) Just as the power of the internal forum directly and immediately regards the internal sanctification of individuals, so the power of the external forum directly regards the external governance of the Church, and therefore reaches internal acts only indirectly, namely those which are necessarily joined with external acts.

n. 265.

1. It is asked moreover whether ecclesiastical law can reach past acts. (A) Per se it generally does not extend to them; for since law is primarily a rule, it cannot reach past acts which can no longer be ruled. Hence in canon law it is expressly said:² "Since it is certain that laws and constitutions give form to future affairs, they are not to be drawn to past facts, unless provision is made in them by name concerning past things." From this was born the axiom: "The law does not have eyes backward."

² Cap. Quoniam, 13, de Constit. (lib. I, t. 2).

(B) Sometimes, however, the law reaches past acts, not indeed as to the force of commanding or forbidding, as has already been said, but as to other effects: -

(a) As to a penal effect; namely, it cannot reach an act previously prohibited in no way, but it can punish an act which was already previously prohibited, although without sanction or without determinate sanction.

(b) As to an irritant effect; if an act, previously posited, is irrevocable by natural or divine right (for example, a matrimonial contract between Christians), a subsequent law cannot reach it; but if from some part, although valid, it is infirm or capable of being made void (for example, a contract entered into from fear), the law can irritate it, for a grave cause, provided that it expressly makes provision for this.

(c) A law establishing inabilities, incapacities, and irregularities, which are not properly penalties, can reach past acts for a most grave cause: for since here there is question not of a penalty, but of a condition for obtaining some office, the matter depends upon the will of the legislator.

It must be noted, however, that the things which we have said regard law properly so called, or law constitutive of new right; for if there is question of a law declarative of ancient right, it much more easily reaches past acts, although the agent ought to be excused from fault and from penalty, on account of ignorance and uncertainty of the newly declared right.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 7 passages

Vol. I, Tr. III, Ch. II, Art. II, § 1. On Ecclesiastical Law Considered in Itself

n. 265.

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

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

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

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

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

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

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

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

n. 266.

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

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

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

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

n. 267.

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

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

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

n. 268.

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

n. 269.

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

When a community is defined by territory, individuals of themselves are not obligated except insofar as they are part of the community existing in such a place; and therefore not outside that territory. Wherefore c. 8 § 2 says: "A law is not presumed personal, but territorial, unless something else is established." Yet insofar as this is expedient for the common good, personal laws can be made, either for a certain class of citizens, for example for clerics, or for all. "If something which an absent person does or omits outside harms in the homeland" ², he will be held by the law. It is the case of a law which prescribes presence itself in a place. For example, a pastor absent from his parish or from the diocesan synod will not be formally excused because he is staying outside the diocese. Wherefore he could also be punished with excommunication.
From c. 10, already recalled, "Laws regard future things, not past things, unless provision is made in them concerning past things by name."

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

² d'Annibale, I, 205.

n. 270.

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

Those who labor under invincible ignorance are of themselves excused from the law and escape penalties. This also can be understood more benignly in ecclesiastical law from cc. 2199; 2202, § 1; 2218, § 2; 2229. Cf. what was said in n. 63. Nevertheless, since invalidating or incapacitating laws are judged to have been especially made on account of the common good, "no ignorance of invalidating or incapacitating laws excuses from the same, unless something else is expressly said" (c. 16 § 1). Moreover, in the external forum, ignorance of law is not presumed, but must be proved (c. 16 § 2).
By canon 15, according to the maxims of simple probabilism, it is expressly established: "Laws, even invalidating and incapacitating laws, do not urge in a doubt of law." Understand a doubt as reasonable or prudent. What a doubt of law is, cf. above, n. 55.

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

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

n. 271.

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

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

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

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

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 28 passages

Vol. I, General Moral Theology, Treatise: On Laws in General, Sect. C, Sixth Part: On Ecclesiasti…, First Question: On Ecclesi…, Article II: On the Matter and Quality of Ecclesiastical Law

n. 325.

325. The matter of ecclesiastical law in general. - The matter of human law is all acts whose performance or omission can contribute to the common good, even those which of themselves are indifferent, insofar as they can be ordered to virtue or vice. The common good which the Church intends is the worship of God and the supernatural sanctification of men; whence it can make laws concerning those things which pertain to spiritual life, such as faith, the Christian virtues, the remission of sins and indulgences; concerning those things which look to worship, such as sacrifice, sacraments, prayers, vows, oaths, processions, pilgrimages, ceremonies, feast days; concerning sacred persons set over spiritual life and worship; concerning temporal goods necessary for providing for all these things.

n. 325.

Moreover, in all these things law can either inculcate the natural and divine law (e.g., by prohibiting heresy, prescribing Baptism), or determine what they leave undetermined (e.g., annual confession, Paschal communion, Sunday, fasting), or impose what is more conformable to them (to celebrate the Nativity of the Lord), or prescribe and prohibit what they permit (to abstain from meats, from servile or forensic work), or urge all these things by an added special sanction of penalty (e.g., excommunication), and also add conditions for the validity of an act instituted by natural, divine, or ecclesiastical law (thus for religious profession, for marriage, e.g., that it be celebrated before the pastor).

326. Specifically, what acts can be prescribed. - On the part of the matter, ecclesiastical law, as being human law, must prescribe acts which are:

generally honorable, that is, not contrary to a higher law, e.g., natural or divine;

specifically just, that is, opposed to the right of no one;

contained within the ambit of the jurisdiction of the legislator: for subjects are bound to obey superiors according to the reason of superiority; whence besides jurisdiction in the superior, competence is required, that is, power over the particular matter about which the law is concerned;

useful for the common good. Such, per se and regularly, are only acts:

a) morally possible and accommodated to the powers of men; otherwise the law would not be conformable to reason, nor would it promote the common good, but more often would be an occasion of sins. Nevertheless, let it be noted that judgment concerning the difficulty of a law belongs to the legislator, not to the subjects; otherwise it would be the end of laws. Moreover, arduous and heroic acts can be imposed upon those who have freely chosen a state to which they pertain (such as perpetual continence upon priests and religious, perpetual enclosure upon nuns, missions in places of barbarians upon missionaries), or even when the public good demands it (e.g., the administration of the sacraments by a pastor in time of plague);

b) future: for to command, prohibit, permit past acts, or, if they are irrevocable, to invalidate them, would be useless; likewise past acts cannot be punished unless they had already been prohibited by some law, nor can revocable acts be invalidated or persons rendered unfit or incapable for past acts, except on account of a great necessity of the common good: for the good of a part must always yield to the good of the whole. Hence canon 10: "Laws regard future things, not past things, unless provision is made in them by name concerning past things" (cf. can. 2226, § 2 and 3, and 2222). But a law not constitutive of new right, but merely declarative of an older right, is able to touch past acts;

c) external, which alone place us in relation to society and alone are directly referred to external governance.

327. Can internal acts be prescribed?

Many more recent authors, by distinction from the older ones, prefer to extend the legislative power of the Church to merely internal acts. Nevertheless they assert this without foundation. For:

Thus formerly Sylvius and Elbel, Schmier and Bockhn; but now Ballerini-Palmieri, Bouquillon, Van den Berghe, Lehmkuhl, Maroto, Leroux in Revue Ecclesiastique de Liege, VII, n. 3, November 1911; Noldin favors it. On the contrary, St. Thomas, I-II, q. 91, a. 4; q. 95; q. 100, a. 9; II-II, q. 104, a. 5; Suarez, Benedict XIV, Reiffenstuel, St. Alphonsus, d'Annibale, Billot, Vermeersch, and almost all canonists.

Just as the power of the internal forum directly and immediately regards the internal sanctification of individuals, so the legislative power of the external forum per se first tends to external and common governance, for society, even ecclesiastical society, is a visible and external body. But merely internal acts are not apt matter for governance of this kind. Therefore. And surely human law, since it is enacted for the community, affects individuals insofar as they are part of visible society and communicate socially among themselves; whence social power is necessarily of the external forum. But merely internal acts do not pertain to social communication: for through them we do not communicate with others. Therefore internal acts directly and according to themselves cannot be the object of human law and of social power.

The legislator cannot make laws except concerning those things about which he can judge and to which he can compel; otherwise law would be useless and inefficacious for obtaining its effect. Hence legislative, judicial, and coercive power are of the same order, as parts of one integral power of jurisdiction, which therefore per se are contained by the same limits. But a human legislator cannot judge or punish except external acts. Therefore neither can he command except external acts.

They respond: 1) The Church could impose censure. But an unknown internal sanction is not naturally proportioned to an external law. 2) It can appeal to divine judgment. But kings also could do this; why, therefore, could they not also prescribe internal acts, for example, of love and devotion toward the republic?

Whence Innocent III says: the Church does not judge concerning hidden things.

Hence legislative power of the internal forum cannot be conceived except as vicarious of God and to be exercised in the name of God; but from revelation or from the usage of the Church no trace is given of such power conceded by God. For the words Mt. XVI, 19 and XVIII, 18 must be understood with restriction according to the nature of the thing, and are general only within the latitude which is always assigned to a human legislator; otherwise they would also prove that the Pontiff can dissolve natural or divine law, or make law in temporal and civil matter.

Therefore: a) it is not proved that ecclesiastical law can prescribe merely internal acts, and it is certain that it does not do so;

b) it is able directly to touch all external acts, even hidden ones; for external acts per se and by their nature are public and only per accidens are hidden; but law attends to those things which happen per se and commonly;

c) it is able indirectly to touch all internal acts which are the form of exterior acts and are conjoined with them, whether necessarily and per se, or even per accidens, provided that in some way they manifest themselves externally: for by this very fact they are touchable by law. Thus there is touched: 1) the internal cause of an external act, e.g., the will of fasting is also prescribed and the will of eating meats is prohibited; likewise 2) a necessary condition so that the external act may have species, validity, honesty, and even special morality, e.g., intention in an oath or in the sacraments or sacrifice, attention in prayer, sorrow in contrition, intention of obligating oneself in a contract, consent in marriage, dispositions so that acts (e.g., confession or communion) may be good (cf. prop. 14 condemned by Alexander VII and 55 condemned by Innocent XI, and can. 907 and 861); 3) likewise a special motive or accidental end on account of which the act is to be placed: Mass to be celebrated for the flock, prayer for rain, for the souls in purgatory, etc.; namely, it is a condition of the public act as it is intended by the Church.

Likewise censure punishes an act done from hatred, favor, avarice, or love of base gain. Yet in this way it does not touch the internal act, but does not touch the external act unless it is done from hatred, etc. It is, namely, only a restriction of punishment, as Suarez and the Salmanticenses say. Or, as Santi explains: insofar as that internal act goes out into the external forum and produces bad effects in society.

328. Observation.

Although by legislative power the Church does not touch merely internal acts, nevertheless it can touch them by another power; and indeed:

it can attach a favor, e.g., an indulgence, to an internal act, as it has done for meditation on the way of the cross;

it can in the name of God interpret natural and divine law even as to merely internal acts, to which then we are bound not by force of ecclesiastical law, but by force of the higher law: thus in the name of God it can remit vows or oaths even internal ones;

it can in the name of God in the internal forum of conscience absolve from sins, even internal ones, and prescribe merely internal things, e.g., pious meditation;