Determinatio

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A determinatio is an authoritative determination by the legislator concerning the application of practical principles, that is not necessitated by deduction from natural [1] or divine law [2] but is based on the contingencies of practical judgement within the possibilities allowed by reason. [1]

In natural law jurisprudence, determinatio is the process of making natural law into positive law [3] In Catholic canon law, determinatio is the act by which natural law or divine positive law is made determinate in the canonical legal system as specific norms of law, [2] although the content of such law is still essentially that of divine law, which, together with canon law, forms "a single juridical system of law". [4]

Natural law system of law that is purportedly determined by nature, and is thus universal

Natural law is law that is held to exist independently of the positive law of a given political order, society or nation-state. As determined by nature, the law of nature is implied to be objective and universal; it exists independently of human understanding, and of the positive law of a given state, political order, legislature or society at large. Historically, natural law refers to the use of reason to analyze human nature to deduce binding rules of moral behavior from nature's or God's creation of reality and mankind.

The concept derives from the legal philosophy of Thomas Aquinas, [5] and continues to be a part of discussions in natural law theory. [3]

Thomas Aquinas Dominican scholastic philosopher of the Roman Catholic Church

Saint Thomas Aquinas was an Italian Dominican friar, Philosopher, Catholic priest, and Doctor of the Church. He is an immensely influential philosopher, theologian, and jurist in the tradition of scholasticism, within which he is also known as the Doctor Angelicus and the Doctor Communis. The name Aquinas identifies his ancestral origins in the county of Aquino in present-day Lazio, Italy. He was the foremost classical proponent of natural theology and the father of Thomism; of which he argued that reason is found in God. His influence on Western thought is considerable, and much of modern philosophy developed or opposed his ideas, particularly in the areas of ethics, natural law, metaphysics, and political theory.

Canon law

Determinatio is a legal doctrine in the jurisprudence of the canon law of the Catholic Church. [2] It was imported from the legal philosophy of Thomas Aquinas. [6]

Catholic Church Largest Christian church, led by the Bishop of Rome

The Catholic Church, also known as the Roman Catholic Church, is the largest Christian church, with approximately 1.3 billion baptised Catholics worldwide as of 2017. As the world's oldest and largest continuously functioning international institution, it has played a prominent role in the history and development of Western civilisation. The church is headed by the Bishop of Rome, known as the pope. Its central administration, the Holy See, is in the Vatican City, an enclave within the city of Rome in Italy.

The general norms of divine or natural law serve as "shaping factors" [2] and "a necessary basis" [2] for the human-made canon law, but such general norms in themselves cannot have a greater legal effect until they are made into specific human laws, since the norms of divine law are "general and non-specific". [2]

But in the movement from the general to the concrete, there are sometimes many possibilities; [2] that is, divine or natural law can be made concrete in may different ways, [2] and all the legitimate alternatives are in line with the requirements of divine law. [2] Wherefore the legislator must make a determinatio and "opt or choose among them". [2]

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References

  1. 1 2 Finnis, John. Aquinas, 266-271.
  2. 1 2 3 4 5 6 7 8 9 10 Hervada, Introduction, pg. 33
  3. 1 2 Waldron, Jeremy. Torture, Suicide, and Determinatio main page, Social Science Research Network. Accessed 22 March 2016.
  4. Hervada, Introduction, pg. 34
  5. Natural Law Theories, Stanford Encyclopedia of Philosophy, accessed 23 March 2016
  6. Hervada, Introduction, pg. 34 (citing Summa Theologiæ Ia-IIæ q.95 a.3)

Bibliography