Canon law (Catholic Church)

This article is part of the series:
Legislation and Legal System of the Catholic Church
Canon Law Task Force

The canon law of the Catholic Church is the system of laws and legal principles made and enforced by the hierarchical authorities of the Church to regulate its external organization and government and to order and direct the activities of Catholics toward the mission of the Church.[1] It was the first modern Western legal system.[2]

Positive ecclesiastical laws, based directly or indirectly upon immutable divine law or natural law, derive formal authority in the case of universal laws from the supreme legislator (i.e. the Supreme Pontiff), who possesses the totality of legislative, executive, and judicial power in his person,[3] while particular laws derive formal authority from a legislator inferior to the supreme legislator. The actual subject material of the canons is not just doctrinal or moral in nature, but all-encompassing of the human condition. It has all the ordinary elements of a mature legal system:[4] laws, courts, lawyers, judges,[4] a fully articulated legal code,[5] principles of legal interpretation,[6] and coercive penalties.[7] It lacks civilly-binding force in most secular jurisdictions. Specialists in the field are usually called canonists (or colloquially, "canon lawyers"). Canon law as a field is called canonistics.

History and codification

The Catholic Church has the oldest continuously functioning legal system in the West,[8] much later than Roman law but predating the evolution of modern European civil law traditions. What began with rules ("canons") adopted by the Apostles at the Council of Jerusalem in the first century has developed into a highly complex legal system encapsulating not just norms of the New Testament, but some elements of the Hebrew (Old Testament), Roman, Visigothic, Saxon, and Celtic legal traditions.

The history of Latin canon law can be divided into four periods: the jus antiquum, the jus novum, the jus novissimum and the Code of Canon Law.[9] In relation to the Code, history can be divided into the jus vetus (all law before the Code) and the jus novum (the law of the Code, or jus codicis).[9]

The canon law of the Eastern Catholic Churches, which had developed some different disciplines and practices, underwent its own process of codification, resulting in the Code of Canons of the Eastern Churches promulgated in 1990 by Pope John Paul II.[10]

Jus Antiquum

Image of pages from the Decretum of Burchard of Worms, the 11th-century book of canon law.

The period of canonical history known as the Jus Antiquum ("ancient law") extends from the foundation of the Church to the time of Gratian (mid-12th century).[9] This period can be further divided into three periods: the time of the apostles to the death of Pope Gelasius I (A.D. 496), the end of the 5th century to the spurious collection of the 9th century, and the last up to the time of Gratian (mid-12th century).[11]

In the early Church, the first canons were decreed by bishops united in "Ecumenical" councils (the Emperor summoning all of the known world's bishops to attend with at least the acknowledgement of the Bishop of Rome) or "local" councils (bishops of a region or territory). Over time, these canons were supplemented with decretals of the Bishops of Rome, which were responses to doubts or problems according to the maxim, "Roma locuta est, causa finita est" ("Rome has spoken, case is closed"). A common misconception, the Catholic Encyclopedia links this saying to St Augustine who actually said something quite different: "jam enim de hac causa duo concilia missa sunt ad sedem apostolicam; inde etiam rescripta venerunt; causa finita est" (which roughly translate to: "there are two councils, for now this matter as brought to the Apostolic See, whence also letters are come to pass, the case was finished") in response to the heretical Pelagianism of the time.

In the first millennium of the Roman Church, the canons of various ecumenical and local councils were supplemented with decretals of the popes; these were gathered together into collections.

Jus Novum

The period of canonical history known as the Jus Novum ("new law") or middle period covers the time from Gratian to the Council of Trent (mid-12th century–16th century).[9]

The spurious conciliar canons and papal decrees were gathered together into collections, both unofficial and official. In the year 1000, there was no book that had attempted to summarized the whole body of canon law, to systematize it in whole or in part.[12] The first truly systematic collection was assembled by the Camaldolese monk Gratian in the 11th century, commonly known as the Decretum Gratiani ("Gratian's Decree") but originally called The Concordance of Discordant Canons[13] (Concordantia Discordantium Canonum). Before Gratian there was no "jurisprudence of canon law" (system of legal interpretation and principles). Gratian is the founder of canonical jurisprudence, which merits him the title "Father of Canon Law".[14]

Canon law greatly increased from 1140 to 1234. After that it slowed down, except for the laws of local councils (an area of canon law in need of scholarship), and secular laws supplemented.[15] In 1234 Pope Gregory IX promulgated the first official collection of canons, called the Decretalia Gregorii Noni or Liber Extra. This was followed by the Liber Sextus (1298) of Boniface VIII, the Clementines (1317) of Clement V, the Extravagantes Joannis XXII and the Extravagantes Communes, all of which followed the same structure as the Liber Extra. All these collections, with the Decretum Gratiani, are together referred to as the Corpus Juris Canonici. After the completion of the Corpus Juris Canonici, subsequent papal legislation was published in periodic volumes called Bullaria.

In the thirteenth century, the Roman Church began to collect and organize its canon law, which after a millennium of development had become a complex and difficult system of interpretation and cross-referencing. The official collections were the Liber Extra (1234) of Pope Gregory IX, the Liber Sextus (1298) of Boniface VIII and the Clementines (1317), prepared for Clement V but published by John XXII. These were addressed to the universities by papal letters at the beginning of each collection, and these texts became textbooks for aspiring canon lawyers. In 1582 a compilation was made of the Decretum, Extra, the Sext, the Clementines and the Extravagantes (that is, the decretals of the popes from Pope John XXII to Pope Sixtus IV).

Jus Novissimum

The third canonical period, known as the Jus Novissimum ("newest law"), stretches from the Council of Trent to the promulgation of the 1917 Code of Canon Law which took legal effect in 1918.[9] The start of the Jus Novissimum is not universally agreed upon, however. Dr. Edward N. Peters argues that the Jus Novissimum actually started with the Liber Extra of Gregory IX in 1234.[16]

Jus Codicis

Pietro Cardinal Gasparri, Architect of the 1917 Code of Canon Law

The fourth period of canonical history is that of the present day, initiated by the promulgation of the 1917 Code of Canon Law[9] on 27 May 1917.[17] It is sometimes referred to as the Jus Codicis ("law of the code") or, in comparison with all law before it, the Jus Novum ("new law").[9] From time to time, the Pontifical Council for Legislative Texts issues authentic interpretations regarding the code. The pope occasionally amends the text of the codes.

Pio-Benedictine law

By the 19th century, the body of canonical legislation included some 10,000 norms. Many of these were difficult to reconcile with one another due to changes in circumstances and practice. The situation impelled Pope St. Pius X to order the creation of the first Code of Canon Law, a single volume of clearly stated laws. Under the aegis of the Cardinal Pietro Gasparri, the Commission for the Codification of Canon Law was completed under Benedict XV, who promulgated the Code on 27 May 1917, effective on 29 May 1918. The work having been begun by Pius X, it was sometimes called the "Pio-Benedictine Code" but more often the 1917 Code to distinguish it from the later 1983 Code which replaced it. In its preparation, centuries of material was examined, scrutinized for authenticity by leading experts, and harmonized as much as possible with opposing canons and even other codes, from the Code of Justinian to the Napoleonic Code.

Johanno-Pauline law

In the succeeding decades, some parts of the 1917 Code were retouched, especially under Pope Pius XII. In 1959, Pope John XXIII announced, together with his intention to call the Second Vatican Council a Synod of the Diocese of Rome, that the 1917 Code would be completely revised.[18][19] In 1963, the commission appointed to undertake the task decided to delay the project until the Council had been concluded. After the Second Ecumenical Council of the Vatican (Vatican II) closed in 1965, it became apparent that the Code would need to be revised in light of the documents and theology of Vatican II. When work finally began, almost two decades of study and discussion on drafts of the various sections were needed before Pope John Paul II could promulgate the revised edition, which came into force on 27 November 1983,[20] having been promulgated via the apostolic constitution Sacrae Disciplinae Leges of 25 January 1983. Containing 1752 canons,[21] it is the law currently binding on the Latin (western) Roman Church.

This edition is referred to as the 1983 Code of Canon Law to distinguish it from the 1917 Code. Like the preceding edition, it applies to Roman Catholics of the Latin Rite.[22]

Oriental law

For Eastern Catholics two sections of Eastern canon law had already, under Pope Pius XII, been put in the form of short canons. These parts were revised as part of the application of Pope John XXIII's decision to carry out a general revision of the Church's canon law; as a result a distinct Code for members of the Eastern Catholic Churches came into effect for the first time on 1 October 1991 (Apostolic Constitution Sacri Canones of 18 October 1990). The Code of Canons of the Eastern Churches, as it is called, differs from the Latin Code of Canon Law in matters where Eastern and Latin traditions diverge, such as terminology, discipline concerning hierarchical offices and administration of the sacraments.

Canon law as legal system

Portrayal of a meeting of the Roman Rota

Much of the legislative style was adapted from that of Roman Law especially the Justinianic Corpus Juris Civilis.[23] As a result, Roman ecclesiastical courts tend to follow the Roman Law style of continental Europe with some variation. After the 'fall' of the Roman Empire and up until the revival of Roman Law in the 11th century canon law served as the most important unifying force among the local systems in the Civil Law tradition.[24] The Catholic Church developed the inquisitorial system in the Middle Ages.[25] This judicial system features collegiate panels of judges and an investigative form of proceeding,[26] in contradistinction to the adversarial system found in the common law of England and many of her former colonies, which utilises concepts such as juries and single judges.

The institutions and practices of canon law paralleled the legal development of much of Europe, and consequently both modern civil law and common law bear the influences of canon law. Edson Luiz Sampel, a Brazilian expert in canon law, says that canon law is contained in the genesis of various institutes of civil law, such as the law in continental Europe and Latin American countries. Sampel explains that canon law has significant influence in contemporary society.

Canonical jurisprudential theory generally follows the principles of Aristotelian-Thomistic legal philosophy.[8] While the term "law" is never explicitly defined in the Code,[27] the Catechism of the Catholic Church cites Aquinas in defining law as "...an ordinance of reason for the common good, promulgated by the one who is in charge of the community"[28] and reformulates it as "...a rule of conduct enacted by competent authority for the sake of the common good."[29]

Sources of law

The primary canonical sources of law are:

In the apostolic constitution Sacri Canones, by means of which he promulgated the Code of Canons of the Eastern Churches, John Paul II stated

By the publication of this Code, the canonical ordering of the whole Church is thus at length completed, following as it does...the "Apostolic Constitution on the Roman Curia" of 1988, which is added to both Codes as the primary instrument of the Roman Pontiff for 'the communion that binds together, as it were, the whole Church' [cf. PB n. 2][31]

Other sources include apostolic constitutions, motibus propriis, and particular law.

Canon law faculties and institutes, and canonical scholarship

The academic degrees in canon law are the J.C.B. (Juris Canonici Baccalaureatus, Bachelor of Canon Law, normally taken as a graduate degree), J.C.L. (Juris Canonici Licentiatus, Licentiate of Canon Law) and the J.C.D. (Juris Canonici Doctor, Doctor of Canon Law), and those with a J.C.L. or higher are usually called "canonists" or "canon lawyers". Because of its specialized nature, advanced degrees in civil law or theology are normal prerequisites for the study of canon law. Canon law as a field is called canonistics.

Number University Name of entity City Country
1
 Catholic University of West Africa Higher Institute of Canon Law Abidjan  Ivory Coast
2
 Catholic University of Central Africa Autonomous Department of Canon Law Yaoundé  Cameroon
3
 Catholic University of Congo Faculty of Canon Law Kinshasa  Democratic Republic of the Congo
4
 Saint Paul University Faculty of Canon Law Ottawa  Canada
5
 Pontifical University of Mexico Faculty of Canon Law Mexico City  Mexico
6
 The Catholic University of America School of Canon Law Washington, D.C.  USA
7
 Pontifical Catholic University of Argentina Faculty of Canon Law of Saint Turibius of Mongrovejo Buenos Aires  Argentina
8
 Pontifical Institute of Canon Law Pontifical Higher Institute of Canon Law Rio de Janeiro  Brazil
9
 Pontifical Faculty of Theology of Our Lady of the Assumption Institute of Canon Law of Fr Dr. Giuseppe Benito Pegoraro São Paulo  Brazil
10
 Pontifical Xavierian University Faculty of Canon Law Bogotá  Colombia
11
 St. Peter's Pontifical Institute of Theology Centre of Canon Law Studies Bangalore  India
12
 Dharmaram Vidya Kshetram Institute of Oriental Canon Law Bangalore  India
13
 Sagesse High School Faculty of Canon Law Beirut  Lebanon
14
 University of Santo Tomas Faculty of Canon Law Manila  Philippines
15
 Katholieke Universiteit Leuven Faculty of Canon Law Leuven  Belgium
16
 Université catholique de Louvain Faculty of Canon Law Louvain-la-Neuve  Belgium
17
 Academy of Canon Law Brno  Czech Republic
18
 Institut Catholique de Paris Faculty of Canon Law Paris  France
19
 University of Strasbourg Institute of Canon Law Strasbourg  France
20
 Catholic University of Toulouse Faculty of Canon Law Toulouse  France
21
 Ludwig Maximilian University of Munich Institute of Canon Law of Klaus Mörsdorf Munich  Germany
22
 University of Münster Faculty of Canon Law Münster  Germany
23
 Pázmány Péter Catholic University Institute of Canon Law Budapest  Hungary
24
 St Patrick's College Faculty of Canon Law Maynooth  Ireland
25
 Pontifical Gregorian University Faculty of Canon Law Vatican city   Vatican City
26
 Pontifical Lateran University Faculty of Canon Law Vatican city   Vatican City
27
 Pontifical University of Saint Thomas Aquinas, Angelicum Faculty of Canon Law Rome  Italy
28
 Pontifical University Antonianum Faculty of Canon Law Rome  Italy
29
 Pontifical Urbaniana University Faculty of Canon Law Vatican city   Vatican City
30
 Salesian Pontifical University Faculty of Canon Law Rome  Italy
31
 Pontifical Oriental Institute Faculty of Oriental Canon Law Vatican city   Vatican City
32
 Pontifical University of the Holy Cross Faculty of Canon Law Vatican city   Vatican City
33
 Studium Generale Marcianum Faculty of Canon Law of St Pius X Venice  Italy
34
 Pontifical University of John Paul II Faculty of Canon Law Kraków  Poland
35
 John Paul II Catholic University of Lublin Faculty of Law, Canon Law and Administration Lublin  Poland
36
 University of Warmia and Mazury in Olsztyn Faculty of Teology Olsztyn  Poland
37
 Cardinal Stefan Wyszyński University in Warsaw Faculty of Canon Law Warsaw  Poland
38
 Catholic University of Portugal Higher Institute of Canon Law Lisbon  Portugal
39
 Comillas Pontifical University Faculty of Canon Law Madrid  Spain
40
 Ecclesiastical University St Damasus Faculty of Canon Law Madrid  Spain
41
 University of Navarre Faculty of Canon Law Pamplona  Spain
42
 Pontifical University of Salamanca Faculty of Canon Law Salamanca  Spain
43
 Valencia Catholic University Saint Vincent Martyr Faculty of Canon Law Valencia  Spain

Fundamental theory of canon law

The fundamental theory of canon law is a newer discipline that takes as is object "the existence and nature of what is juridical in the Church of Jesus Christ."[32] It is the philosophy and theology of canon law.

Scholars of the discipline ask questions such as "Why does canon law exist?", "Why should canon law exist", "How does canon law relate to the 'Mystery of the Church' and her hierarchical constitution?"

The discipline seeks to provide a theoretical basis for the coexistence and complementarity of canon law and the Catholic Church, and it seeks to refute the "canonical antijuridicism" (the belief that "law of the church" constitutes a contradiction in terms; that "law" and "church" are radically incompatible)[33] of the various heretical movements and of the Protestant Reformation[34] on the one hand, and on the other, the antijuridicism deriving from a belief that all law is identifiable with the law of the state; that in order to be true law, the state must be its maker.[35] The discipline seeks to better explain the nature of law in the church and engages in theological discussions in post-conciliar Catholicism[36] and seeks to combat "postconciliar antijuridicism".[37]

Canon law and Church office

Under the 1983 Code of Canon Law, all seminary students are required to take courses in canon law.[38] Some ecclesiastical officials are required to have the doctorate (JCD) or at least the licentiate (JCL) in canon law in order to fulfill their functions: judicial vicars;[39] judges;[40] promoters of justice;[41] defenders of the bond;[41] canonical advocates.[42] In addition, vicars general and episcopal vicars are to be doctors, or at least licensed in canon law or theology.[43] Ordinarily, bishops are to have an advanced degree (doctorate or at least licentiate) in scripture, theology, or canon law.[44]

Patron saint

St. Raymond of Penyafort (1175–1275), a Spanish Dominican priest, is the Patron Saint of canonists,[8] due to his important contributions to Canon Law. Other saintly patrons include St. Ivo of Chartres and the Jesuit St. Robert Bellarmine.

Related terms

Footnotes

  1. ↑ Manual of Canon Law, pg. 3
  2. ↑ Harold J. Berman, "Law and Revolution: The Formation of the Western Legal Tradition" (Cambridge, MA: Harvard University Press, 1983), pg. 86 & pg. 115
  3. ↑ Canon 331, 1983 Code of Canon Law
  4. 1 2 Edward N. Peters, "A Catechist's Introduction to Canon Law", CanonLaw.info, accessed June-11-2013
  5. ↑ Manual of Canon Law, pg. 49
  6. ↑ 1983 Code of Canon Law
  7. ↑ St. Joseph Foundation newsletter, Vol. 30 No. 7, pg. 3
  8. 1 2 3 Dr. Edward N. Peters, CanonLaw.info Home Page, accessed June-11-2013
  9. 1 2 3 4 5 6 7 Manual of Canon Law, pg. 13, #8
  10. ↑ Blessed John Paul II, Ap. Const.Sacri Canones
  11. ↑ Manual of Canon Law, pg. 14
  12. ↑ Law and Revolution, pg. 116
  13. ↑ Law and Revolution, pg. 240
  14. ↑ Dr. Kenneth J. Pennington, Ph.D., CL701, CUA School of Canon Law, "History of Canon Law, Day 1", around 0:25:30, accessed 8-15-2014
  15. ↑ NYTimes.com, Neighbors and Wives book review of Nov-13-1988, accessed 27 June 2013
  16. ↑ Dr. Edward N. Peters, A suggestion for reordering the major divisions of canonical history, accessed 16 May 2013
  17. ↑ CanonLaw.info, accessed Jan-19-2013
  18. ↑ John XXIII, allocution Questa festiva (25 Jan. 1959), AAS 51 (1959) pp. 68-69
  19. ↑ CanonLaw.info, "Legislative History of the 1983 Code of Canon Law"; accessed June-7-2013
  20. ↑ NYTimes.com, "New Canon Law Code in Effect for Catholics", 27-Nov-1983, accessed June-25-2013
  21. ↑ Britannica "Canon Law", accessed 6-24-2013
  22. ↑ Can. 1, 1983 CIC ("The Canons of this code regard only the Latin Church.")
  23. ↑ NYTimes.com, "Pope to Codify Canon Law", 1-Apr-1904, accessed 25-June-2013
  24. ↑ Comparative Legal Traditions, pg. 43
  25. ↑ TheFreeDictionary.com, accessed June-28-2013
  26. ↑ Fr. Lawrence DiNardo, "A Zenit Daily Dispatch—Going to Court in the Church: Canon Lawyer Explains Penal Procedures" (17 June 2010); accessed at EWTN.com June-10-2013
  27. ↑ JGray.org, accessed June-8-2013
  28. ↑ Catechism of the Catholic Church §1976, citing Summa Theologiae I-II, 90, 4
  29. ↑ Catechism of the Catholic Church §1951
  30. 1 2 Dr. Edward Peters, CanonLaw.info, accessed June-9-2013
  31. ↑ Code of Canons of the Eastern Churches, Latin-English Edition, New English Translation (Canon Law Society of America, 2001), page xxv
  32. ↑ Errázuriz M., Fundamental Theory, xvii.
  33. ↑ Errázuriz M., Fundamental Theory, 4-5.
  34. ↑ Errázuriz M., Fundamental Theory, 7, 20.
  35. ↑ Errázuriz M., Fundamental Theory, 26.
  36. ↑ Errázuriz M., Fundamental Theory, 59 et seq.
  37. ↑ Errázuriz M., Fundamental Theory, 62
  38. ↑ 1983 CIC, can. 252 §3
  39. ↑ 1983 CIC, can. 1420 §4
  40. ↑ 1983 CIC, can. 1421 §3
  41. 1 2 1983 CIC, can. 1435
  42. ↑ 1983 CIC, can. 1483
  43. ↑ 1983 CIC, can. 478 §1
  44. ↑ 1983 CIC, can. 378 §1 °5

Sources consulted

  1. Europe in the High Middle Ages William Chester Jordan, "The Penguin History of Europe: Europe in the High Middle Ages" (London: Penguin Books, 2002)
  2. Manual of Canon Law Fernando della Rocca (translated by Rev. Anselm Thatcher, O.S.B.), "Manual of Canon Law" (Milwaukee: The Bruce Publishing Company, 1959)
  3. Law and Revolution Harold J. Berman, "Law and Revolution: The Formation of the Western Legal Tradition" (Cambridge, MA: Harvard University Press, 1983)
  4. 1917 (Pio-Benedictine) Code of Canon Law (CIC) Translated by Edward Peters, "The 1917 or Pio-Benedictine Code of Canon Law: in English Translation with Extensive Scholarly Apparatus" (Ignatius Press, 2001)
  5. 1983 Code of Canon Law (CIC) "Code of Canon Law" at Vatican.va
    Publication details: Latin-English Edition, New English Translation; Prepared under the auspices of the Canon Law Society of America, Washington, DC 20064
  6. Catechism of the Catholic Church Vatican.va
  7. CanonLaw.info Dr. Edward N. Peters, JD, JCD, Ref. Sig. Ap.
    http://www.canonlaw.info
  8. Comparative Legal Traditions Mary Ann Glendon, Michael Wallace Gordon, Christopher Osakwe, "Comparative Legal Traditions: Text, Materials and Cases (American Casebook Series)" (St. Paul, MN: West Publishing Co., 1985)
  9. Justice in the Church: A Fundamental Theory of Canon Law Carlos José Errázuriz M., "Justice in the Church: A Fundamental Theory of Canon Law" (Montreal: Wilson & Lefleur Ltée, 2009) trans. Jean Gray in collaboration with Michael Dunnigan.

External links

Texts and translations of Codes of Canon Law

With referenced concordances

Without concordances

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