Decree (Catholic canon law)

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A decree (Latin: decretum, from decerno, "I judge") is, in a general sense, an order or law made by a superior authority for the direction of others. In the usage of the canon law of the Catholic Church, it has various meanings. Any papal Bull, Brief, or Motu Proprio is a decree inasmuch as these documents are legislative acts of the Pope. In this sense the term is quite ancient. [note 1] The Roman Congregations were formerly empowered to issue decrees in matters which come under their particular jurisdiction, but were forbidden from continuing to do so under Pope Benedict XV in 1917. Each ecclesiastical province, and also each diocese may issue decrees in their periodical synods within their sphere of authority.

Decrees can be distinguished between legislative and executory decrees. A general legislative decree enacts law (lex) and stands on its own, while executory decrees determine the implementation of a legislative act and are dependent upon such for their efficacy.

Executory decrees can further be distinguished between general executory decrees and singular executory decrees. A general executory decree binds all those for whom the original law was made, while a singular executory decree makes a decision or makes provision for the appointment of a specific office. Precepts are a kind of singular executory decree, which bind specific person(s) to do or refrain from some act, especially to observe the law. Singular executory decrees are administrative acts subject to administrative recourse.

Canon 29 definition

Canon 29 of the 1983 Code of Canon Law offers a definition of general legislative decrees:

General decrees, by which a competent legislator makes common provisions for a community capable of receiving a law, are true laws and are regulated by the provisions of the canons on laws. [1]

The canon reproduces substantial elements (later deleted) of the original draft of what would become canon 7. This canon incorporates a definition which takes its inspiration from Thomas Aquinas' definition of human law found in his Treatise on Law . [2]

Codifications

The word is also used to denote certain specified collections of church law, e.g. Gratian's Decree ( Decretum Gratiani ). In respect of the general legislative acts of the pope there is never doubt as to the universal extent of the obligation; the same may be said of the decrees of a General Council, e.g. those of the First Vatican Council.

The Council of Trent was the first to apply the term indiscriminately to rulings concerning faith and discipline (decreta de fide, de reformatione).

Decrees of Roman curial congregations

The Roman Congregations were formerly empowered to issue decrees in matters which came under their particular jurisdiction. The decrees of the Roman Congregations (q. v.) are certainly binding in each case submitted for judgment. But there are varying opinions as to whether such judgment is to be taken as a rule or general law applying to all similar cases. The common opinion is that when the decisions are enlargements of the law (declaratio extensiva legis) the decisions do not bind except in the particular case for which the decree is made. If, however, the decision is not an enlargement, but merely an explanation of the law (declaratio comprehensiva legis), such decree binds in similar cases.

Benedict XV's restriction of curial decrees

Hardcover of the 1917 Code of Canon Law Cover of a copy of the 1917 Codex Iuris Canonici (Code of Canon Law).jpg
Hardcover of the 1917 Code of Canon Law

On 15 September 1917, by the motu proprio Cum Iuris Canonici, [3] Pope Benedict XV made provision for a Pontifical Commission charged with interpreting the code and making any necessary modifications as later legislation was issued. New laws would be appended to existing canons in new paragraphs or inserted between canons, repeating the number of the previous canon and adding bis, ter, etc. [4] (e.g. "canon 1567bis" in the style of the civil law) so as not to subvert the ordering of the code, or the existing text of a canon would be completely supplanted. The numbering of the canons was not to be altered. [5]

The Roman Congregations were forbidden to issue new general decrees, unless it was necessary, and then only after consulting the Pontifical Commission charged with amending the code. The congregations were instead to issue Instructions on the canons of the code, and to make it clear that they were elucidating particular canons of the code. [6] This was done so as not to make the code obsolete soon after it was promulgated. The 1917 Code was very rarely amended, and then only slightly. [7]

Particular law

The decrees of a national council may not be promulgated until they have received the approval of the pope. The decrees of a provincial synod have no force until they have been approved by Rome. This approval is twofold: ordinary (in formâ communi), and specific (in formâ specificâ). The former means that there is nothing which needs correction in the decrees of the synod, and they thereby have force in the province. This is the approval generally given to such decrees. If approval is given in formâ specificâ the decrees have the same force as if they emanated from the Apostolic See, though they are binding only in the province for which they are made.

The decrees of a diocesan bishop deal with the administration and good order of his diocese. If they are made during a synod, they are diocesan laws, are usually known as "diocesan statutes", or "synodal statutes", and bind until revoked by the bishop or his successor. If the decrees are extra-synodal, they have force only during the lifetime of the bishop or until he revokes them himself.

See also

Notes

  1. Pope Siricius speaks (Ep. i, ad Himer., c. ii) of the decreta generalia of Pope Liberius.

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The Acts of Roman Congregations is a term of the canon law of the Roman Catholic Church, used to designate the documents issued by the Roman Congregations, in virtue of powers conferred on them by the Roman Pontiff.

1917 Code of Canon Law Former codification of canonical legislation of the Latin Catholic Church, valid from 1917 until 1983

The 1917 Code of Canon Law, also referred to as the Pio-Benedictine Code, was the first official comprehensive codification of Latin canon law. It was promulgated on 27 May 1917 and took legal effect on 19 May 1918. It was in force until the 1983 Code of Canon Law took legal effect and abrogated it on 27 November 1983. It has been described as "the greatest revolution in canon law since the time of Gratian".

1983 Code of Canon Law 1983 codification of canonical legislation for the Latin Rite of the Catholic Church

The 1983 Code of Canon Law, also called the Johanno-Pauline Code, is the "fundamental body of ecclesiastical laws for the Latin Church". It is the second and current comprehensive codification of canonical legislation for the Latin Church sui iuris of the Catholic Church. It was promulgated on 25 January 1983 by John Paul II and took legal effect on the First Sunday of Advent 1983. It replaced the 1917 Code of Canon Law, promulgated by Benedict XV on 27 May 1917.

The legal history of the Catholic Church is the history of the oldest continuously functioning legal system in the West, much later than Roman law but predating the evolution of modern European civil law 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. In relation to the Code, history can be divided into the jus vetus and the jus novum. Eastern canon law developed separately.

The matrimonial nullity trial reforms of Pope Francis are the reforms of Catholic canon law governing such trials, made public 8 September 2015. The reforms were effected by two separate apostolic letters from Pope Francis, the motu proprio Mitis iudex dominus Iesus amending the 1983 Code of Canon Law, and the motu proprio Mitis et misericors Iesus amending the Code of Canons of the Eastern Churches. This was in response to the bishops who, during the Synod on the Family of 5-9 October 2014, called for simplification of the procedure whereby a legally invalid marriage is declared null.

Promulgation in the Catholiccanon law is the publication of a law by which it is made known publicly, and is required by canon law for the law to obtain legal effect. Universal laws are promulgated when they are published in Acta Apostolicae Sedis, and unless specified to the contrary, obtain legal force three months after promulgation. Particular laws are promulgated in various ways but by default take effect one month after promulgation.

The Eastern Catholic canon law is the law of the 23 Catholic sui juris (autonomous) particular churches of the Eastern Catholic tradition. Eastern Catholic canon law includes both the common tradition among all Eastern Catholic Churches, now chiefly contained in the Code of Canons of the Eastern Churches, as well as the particular law proper to each individual sui juris particular Eastern Catholic Church. Oriental canon law is distinguished from Latin canon law, which developed along a separate line in the remnants of the Western Roman Empire, and is now chiefly codified in the 1983 Code of Canon Law.

The jurisprudence of Catholic canon law is the complex of legal theory, traditions, and interpretative principles of Catholic canon law. In the Latin Church, the jurisprudence of canon law was founded by Gratian in the 1140s with his Decretum. In the Eastern Catholic canon law of the Eastern Catholic Churches, Photios holds a place similar to that of Gratian for the West.

The philosophy, theology, and fundamental theory of Catholic canon law are the fields of philosophical, theological (ecclesiological), and legal scholarship which concern the place of canon law in the nature of the Catholic Church, both as a natural and as a supernatural entity. Philosophy and theology shape the concepts and self-understanding of canon law as the law of both a human organization and as a supernatural entity, since the Catholic Church believes that Jesus Christ instituted the church by direct divine command, while the fundamental theory of canon law is a meta-discipline of the "triple relationship between theology, philosophy, and canon law".

References

  1. Canon 29, 1983 Code of Canon Law; accessed 30 March 2016.
  2. Exegetical commentary, pg. 261.
  3. Pope Benedict XV, motu proprio Cum Iuris Canonici of 15 September 1917, (Edward N. Peters, 1917 Code, pg. 25)
  4. Pope Benedict XV, motu proprio Cum Iuris Canonici of 15 September 1917, §III (Edward N. Peters, 1917 Code, pg. 26)
  5. Metz, What is Canon Law? pgs. 62-63
  6. Pope Benedict XV, motu proprio Cum Iuris Canonici of 15 September 1917, §§II-III (Edward N. Peters, 1917 Code, pg. 26)
  7. Metz, What is Canon Law? pg. 64

Bibliography