Dispensation (Catholic Church)
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Dispensation is a term used in the Canon Law of the Catholic Church referring to the suspension by competent authority of general rules of law in particular cases. Its object is to modify the hardship often arising from the rigorous application of general laws to particular cases, and its essence is to preserve the law by suspending its operation in such cases.
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[edit] History
In Canon law theory, the dispensing power is the corollary of the legislative. The dispensing power, like the legislative, was formerly invested in general councils and even in provincial synods. But in the west, with the gradual centralisation of authority in the Roman curia, it became ultimately vested in the pope as the supreme lawgiver of the Catholic Church.
Despite frequent crises in the diplomatic relations between the Holy See and temporal governments in the later Middle Ages, the authority of the papacy as the dispenser of grace and spiritual licences remained largely unchallenged. In the early thirteenth century Pope Innocent III (1198-1216) fostered the extension of papal political power. He emphasised, “as had no pope before him, the pope’s ‘plenitudo potestatis’ (fullness of power) within the Church.” Since the Church comprised the whole of mankind, medieval jurists were accustomed to what we might call shared sovereignty, and freely accepted that the pope had a concurrent jurisdiction with temporal sovereigns. The temporal princes could administer their own laws, but the princes of the Church, and especially the pope, administered the canon law (so far as it was subject to merely human control).
In the decretal Proposuit, Innocent III proclaimed that the pope could, if circumstances demanded, dispense from Canon law, de jure, with his plenitude of power, on the basis that princeps legibus solutus est (the prince is not bound by the laws). Because the pope was above the law, time or precedent did not limit his power, and he could dispense with any law.
Such a dispensation was not, strictly speaking, legislative, but rather a judicial, quasi-judicial or executive act. It was also, of course, subject to the proviso that his jurisdiction to dispense with laws was limited to those laws which were within his jurisdiction or competence. “[T]his principle would have been a commonplace to anyone who had studied in Bologna.”
By this power of dispensation the pope could release clergy and laity from the obligations of the canon law in all cases that were not contrary to ius divinum and even in a few cases that were. This power was most frequently invoked to enable laity to marry notwithstanding impediments of affinity or kinship, and to enable persons labouring under an irregularity (such as of bastardy, servitude or lack of age) to take orders or become regulars.
Dispensations awarded might be classified into three categories.
- The first two categories, rules concerning the procedure of taking holy orders, and dispensations concerning tenure of Benefices, applied only to clergy.
- The third category, matrimonial dispensations, i.e. regarding marriage, concerned only the laity since the clergy is celibate.
- Beside the three main classes of dispensation, the papal curia was ready to grant miscellaneous positive concessions to applicants who could afford the necessary fees. This host of dispensations, faculties and indults included permission to eat flesh during Lent, the celebration of offices in chapels of ease and private oratories, and the granting of degrees. Those dispensations relating to academic degrees were mostly issued under the sanction of the canon law as stated in the constitution of Boniface VIII beginning “Cum ex eo.”
[edit] Present use
There are several levels of authority in the Church which are competent to dispense the various demands of Canon Law. Local ordinaries, for example, are competent to dispense the various canonical impediments to the sacrament of marriage. Some dispensations are reserved to the Holy See, for example from the impediment to ordination of apostasy.
[edit] See also
[edit] Sources
- David Chamber, Faculty Office Registers, 1534-1549: A Calendar of the First Two Registers of the Archbishop of Canterbury’s Faculty Office (Clarendon Press 1966)
- Sir Edward Coke, 4th Institutes of the Laws of England 337 (Garland Publg. 1979)
- Wilfrid Hooper, "The Court of Faculties", 25 English Historical Rev. 670 (1910)
- Noel Cox, Dispensations, "Privileges, and the Conferment of Graduate Status: With Special Reference to Lambeth Degrees". Journal of Law and Religion, 18(1), 249-274 (2002-2003)
- Gabriel Le Bras, Charles Lefebvre & Jacqueline Rambaud, "L’âge classique, 1140-1378: sources et théorie du droit" vol. 7, 487-532 (Sirey 1965)
- Francis Oakley, "Jacobean Political Theology: The Absolute and Ordinary Powers of the King", 29 J. of History of Ideas 323 (1968)
- Kenneth Pennington, The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition (U. Cal. Press 1993)
