Derogation

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Canon law of the
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Derogation is the partial suppression of a law, [1] as opposed to abrogation—total abolition of a law by explicit repeal—and obrogation—the partial or total modification or repeal of a law by the imposition of a later and contrary one. The term is used in canon law, [1] civil law, and common law. It is sometimes used, loosely, to mean abrogation, as in the legal maxim: Lex posterior derogat priori, i.e. a subsequent law imparts the abolition of a previous one.

A repeal is the removal or reversal of a law. There are two basic types of repeal, a repeal with a re-enactment of the repealed law, or a repeal without any replacement.

In the canon law of the Catholic Church, obrogation is the enacting of a contrary law that is a revocation of a previous law. It may also be the partial cancellation or amendment of a law, decree, or legal regulation by the imposition of a newer one.

Civil law, or civilian law, is a legal system originating in Europe, intellectualized within the framework of Roman law, the main feature of which is that its core principles are codified into a referable system which serves as the primary source of law. This can be contrasted with common law systems, the intellectual framework of which comes from judge-made decisional law, and gives precedential authority to prior court decisions, on the principle that it is unfair to treat similar facts differently on different occasions.

Derogation differs from dispensation in that it applies to the law, whereas dispensation applies to specific people affected by the law.

In the jurisprudence of the canon law of the Catholic Church, a dispensation is the exemption from the immediate obligation of law in certain 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.

Canon law

That is to say, in canon law a dispensation affirms the validity of a law, but asserts that the law will not be held to apply to one or more specific persons, for a specific reason. (For example, while the Catholic Church's canon law does not normally recognise gender transition, an intersex woman may present appropriate medical documentation to seek, and possibly receive, a dispensation from the Holy See to live and be recognised as a man, or vice versa.) Derogation, on the other hand, affects the general applicability of a law.

Intersex Innate variations in sex characteristics such that individuals differ from norms for male or female bodies

Intersex people are individuals born with any of several variations in sex characteristics including chromosomes, gonads, sex hormones, or genitals that, according to the UN Office of the High Commissioner for Human Rights, "do not fit the typical definitions for male or female bodies". Such variations may involve genital ambiguity and combinations of chromosomal genotype and sexual phenotype other than XY-male and XX-female.

A non-canon-law analogue of dispensation might be the issuing of a zoning variance to a particular business, while a general rezoning applied to all properties in an area is more analogous to derogation.

European Union law

In terms of European Union legislation, a derogation can also imply that a member state delays the implementation of an element of an EU Regulation (etc.) into their legal system over a given timescale, [2] such as five years; or that a member state has opted not to enforce a specific provision in a treaty due to internal circumstances (typically a state of emergency).

European Union Economic and political union of European states

The European Union (EU) is a political and economic union of 28 member states that are located primarily in Europe. It has an area of 4,475,757 km2 (1,728,099 sq mi) and an estimated population of about 513 million. The EU has developed an internal single market through a standardised system of laws that apply in all member states in those matters, and only those matters, where members have agreed to act as one. EU policies aim to ensure the free movement of people, goods, services and capital within the internal market, enact legislation in justice and home affairs and maintain common policies on trade, agriculture, fisheries and regional development. For travel within the Schengen Area, passport controls have been abolished. A monetary union was established in 1999 and came into full force in 2002 and is composed of 19 EU member states which use the euro currency.

Regulation (European Union) legislative act of the European Union

A regulation is a legal act of the European Union that becomes immediately enforceable as law in all member states simultaneously. Regulations can be distinguished from directives which, at least in principle, need to be transposed into national law. Regulations can be adopted by means of a variety of legislative procedures depending on their subject matter.

See also

The doctrine of implied repeal is a concept in constitutional theory which states that where an Act of Parliament or an Act of Congress conflicts with an earlier one, the later Act takes precedence and the conflicting parts of the earlier Act becomes legally inoperable. This doctrine is expressed in the Latin phrase "leges posteriores priores contrarias abrogant".

State of emergency Legal declaration or de facto acts by a government allowing assumption of extraordinary powers

A state of emergency is a situation in which a government is empowered to perform actions that it would normally not be permitted to do. A government can declare such a state during a disaster, civil unrest, or armed conflict. Such declarations alert citizens to change their normal behavior and orders government agencies to implement emergency plans. Justitium is its equivalent in Roman law—a concept in which the senate could put forward a final decree that was not subject to dispute.

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Canon law is a set of ordinances and regulations made by ecclesiastical authority, for the government of a Christian organization or church and its members. It is the internal ecclesiastical law, or operational policy, governing the Catholic Church, the Eastern Orthodox and Oriental Orthodox churches, and the individual national churches within the Anglican Communion. The way that such church law is legislated, interpreted and at times adjudicated varies widely among these three bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council; these canons formed the foundation of canon law.

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Custom in Catholic canon law is the repeated and constant performance of certain acts for a defined period of time, which, with the approval of the competent legislator, thereby acquire the force of law. A custom is an unwritten law introduced by the continuous acts of the faithful with the consent of the legitimate legislator.

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 Oriental canon law of the Eastern Catholic Churches, Photios holds a place similar to that of Gratian for the West.

References

  1. 1 2 Manual of Canon Law, pg. 69
  2. Derogation – EU Jargon

Bibliography