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| News from the Tribunal |
| Fr. Langes Silva, JCL, JCD |
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Introduction
Through this article I would like to explore and examine some similarities between canon law and secular law. I would like also to point out ways that faithful Catholics can use the knowledge of legal principles as an instrument to understand the Church’s legal structures, and also to make the proper defense of their rights and duties in the Church’s forum in a more effective way; finally, this series will offer some recommendations on how clerics, church administrators, and lay ministers can use some of the same legal principles in an effective ministry.
Let us begin by saying that canon law is law for the Roman Catholic Church, which is expressed by legislative structures, courts, judges, law schools, procedures, and judicial structures. Most Christian communities have governing documents, at least for certain areas of ministry and functioning; but it is only the Catholic Church, the Orthodox Churches, and the Anglican Communion that claim to have actual law. The Code of Canon Law of the Roman Catholic Church, as a systematic arrangement of the law of the Church, is not merely an orderly set of policies, a simple pastoral consideration, or an optional instrument for the clergy and the faithful; it is in fact law.
One fundamental point to be emphasized is explained as follows: whether the forum decided by someone is the secular or the ecclesiastical legal system, defending or clarifying one’s right is often difficult. Even a well-grounded cause must be supported by solid evidence and be skillfully argued. Otherwise, it probably will not prevail.
Historical Considerations
The following brief considerations of some historical developments are presented in order to provide a point of reference. The human race along its history has had the practical challenge to maintain order and to provide justice for all. Throughout history, numerous legal systems have been developed in order to establish models or standards of behavior within the different ethnic groups and places on the earth; these developments in legal structures are intended to provide the proper procedures to protect the law and to judge or penalize those who violate it. In addition, these legal systems also seek to reduce conflicts by providing instances of mediation, arbitration, dialogue, and a peaceful resolution of conflicts.
Each of the large variety of secular legal systems established throughout the world have their origins mostly either in English common law or in Roman law. The latter are called “civil law” countries, but in general those countries are outside the English-speaking world except those under Islamic religious law. Common, civil, and canon law may be referred to as separate and distinctive entities, but they are closely connected to one another. All of them can trace their origins to Roman law.
The legal system we have in the Catholic Church today is not the result of recent pontifical decisions or councils; rather, it is the result of millennia of development through different legal collections, apostolic letters, decrees, compendiums, individuals, and ecumenical councils. From the beginning of the Church, it became known that rules (or norms) would be absolutely necessary in order to provide a sense of “belonging” and “consistency” to the people who, as a group or community of believers, sought to follow the teachings of Jesus Christ. The Acts of the Apostles recounts a gathering of leaders of the Christian community in Jerusalem to discuss the “gentile” question and how to assimilate this group into the fellowship of believers (Acts 15). From this very moment it became clear that an internal structure for decision-making and legislating was needed.
Some of the major highlights in the development of the church’s legal system are: a collection of instructions in matters of liturgy and morality known as the “Didache” (circa 100 A.D.); a collection of liturgical norms and other diverse prescriptions concerning life in the community known as the “Apostolic Tradition” of Hippolytus of Rome (c. 218); one of the first attempts at assembling a body of canon law known as the “Didascalia Apostolorum” (c. 250); and the Council of Nicea, the first ecumenical council, which established different norms for the structural organization of the church (325). Let me highlight the following moments in the development of the Code of Canon Law:
If we go back to the 12th century, we can observe that the study of law underwent several developments that influenced both secular and canon law in ways that are significant and visible to the world today.
The first development I want to mention was the revival of the study of Roman law; mainly through the “Corpus Iuris Civilis” issued by Justinian in the sixth century. Another important development was the appearance of the first canon law textbook written by Gratian of Bologna around 1140; commonly known as “Decretum Gratiani” or “Gratian’s Decree,” it was made a part of canon law by Pope Gregory IX in 1234 and remained in force as the law for the Roman Catholic Church until 1917.
After Gratian’s time, the study of canon law in universities became standardized throughout Western Europe. Commonly known as the “Ius Commune,” it included the study of Roman civil law, “Gratian’s Decree” and pontifical decretals or papal decretals. This became standard academic training for any lawyer that intended to practice law, either before the secular or ecclesiastical courts.
The “Ius Commune” was predominant in Europe for about 100 years until it was eclipsed by the Reformation and later by the rise of nation states. In the meantime, the Church continued to operate under the “Corpus Iuris Canonici” (Body of Canon Law) from the 12th through the 19th centuries.
One of the largest tasks of the 18th century was the codification of law. For the Roman Catholic Church, it was only until 1917 when Pope Benedict XV promulgated the Code of Canon Law, which was largely the work of Cardinal Pietro Gasparri. One of his collaborators was Eugenio Pacelli, the man who would become Pope Pius XII. The influence of the 19th century European civil law on the Pio-Benedictine Code of 1917 remains for academic purposes and comparative studies of law.
A revision of the Code of Canon Law was inaugurated during the pontificate of John XXIII, who announced on January 25, 1959 his desire to update the law of the church at the same time he announced an ecumenical council (Vatican II) and a synod for the city of Rome. Pope Paul VI determined that the work of the code commission itself would not begin until the conclusion of the Second Vatican Council.
The work was finally completed under the pontificate of John Paul II when the Code was promulgated on January 25, 1983 through the Apostolic Constitution, “Sacrae Disciplinae Leges.” In October of 1990, Pope John Paul II promulgated the Code of Canons of the Easter Churches in order that the proper disciplines of the Easter Churches be maintained and fostered.
Connections between legal systems
A general principle is presented through canon 22: “Civil laws to which the law of the Church yields are to be observed in canon law with the same effects, insofar as they are not contrary to divine law and unless canon law provides otherwise.”
By this principle we can affirm that some situations in the life of the People of God are best regulated in accordance with the law of the State in which they live. The current Code of Canon Law refers many of these matters to the particular civil legislation of the land, for example, canons 98 §2, 110, 197, 1059, 1062 §1, 1284 §2 3º, 1290. This particular canon is an innovation of the current Code because it is not found in the 1917 Code. Canon 22 makes clear that, in these situations, the civil law is considered as a supplementary or subsidiary source of law.
Where it applies, the civil laws are to be observed with the same effects in canon law. However, matters cannot be left to civil law if its prescriptions are contrary to divine law, or if canon law has made other provisions. Let us now analyze in detail the following specific areas.
1. In matters of International law
Vatican II clearly proclaimed the principle that the political community and the Church are autonomous and independent entities, but it called at the same time for mutual cooperation in favor of the welfare of all human beings. The Council claimed the Church’s right to true freedom to preach the faith, to proclaim its teaching about society, to carry out its task among people without hindrance, and to pass moral judgments even in matters relating to politics, whenever the fundamental rights of man or the salvation of souls require it.
According to this principle, therefore, the mission of the Church in the world determines the basis of its relationship with any political community and, consequently, the basis for entering into mutual agreements (“conventions”) in view of fulfilling that mission. The following canon determines the status of such agreements as has been entered into before the coming effect of the current Code of Canon Law:
Canon 3: “The canons of the Code neither abrogate nor derogate from the agreements entered into by the Apostolic See with nations or other political societies. These agreements therefore continue in force exactly as at present, notwithstanding contrary prescriptions of this Code.”
2. In matters of family law
In the appointment of guardians for a minor and the determination of their powers, the Code of Canon Law leaves the matter to the provisions of civil law (as already mentioned by canon 22), except in two different scenarios: a. if canon law has made an alternative provision (see canon 1479); b. if in a specific case and for a just reason, the diocesan bishop has appointed someone else: such a guardian can act only in that specific case, but the extent of such person’s authority is to be determined in accordance with the prevailing civil law. The canon establishes the following:
Canon 98 § 2: “A minor, in the exercise of his rights, remains subject to the authority of parents or guardians except in those matters in which minors are exempted from their authority by divine law or canon law. In what pertains to the appointment of guardians and their authority, the prescriptions of civil law are to be observed unless canon law provides otherwise or unless in certain cases the diocesan bishop, for a just cause, has decided to provide for the matter through the appointment of another guardian.”
Another purely legal relationship is that which arises from the adoption of a child in accordance with the civil law. Since canon law has no procedure for adoption, this matter is remitted entirely to civil law: to all intents and purposes, therefore, adopted children are regarded by the law of the Church as equivalent to the natural children of those who adopt them. This special relationship may give rise to the impediment of legal adoption described in canon 1094. The issue of adoption is regulated by the following canon of the Code of Canon Law:
Canon 110: “Children who have been adopted according to the norm of civil law are considered the children of the person or persons who have adopted them.”
3. In matters of prescription
Prescription is defined as a means by which persons can acquire or lose subjective rights or free themselves from certain obligations. In order for prescription to be effective, certain conditions must be verified: 1. the right or obligations must admit of prescription, for example, the right of ownership; 2. the person concerned must be in possession of the right or obligation in question and have some rightful claim to it; 3. the person must be acting in good faith; and 4. a specific period of time must have elapsed, such as 100 years and 30 years as described in canon 1270. This issue is regulated through the following canon:
Canon 197: “The Church receives prescription as it is in the civil legislation of the nation in question, without prejudice to the exceptions which are established in the canons of this Code; prescription is a means of acquiring or losing a subjective right as well as of freeing oneself from obligations.”
Generally, the Code refers issues related to prescription to the civil law prevailing in each country and this is a clear example on how the canonization of civil law can operate. It is for the laws of each country to determine what rights or obligations may be acquired or lost by prescription, who may so acquire or lose them, what period of time is necessary, etc. There are certain matters in which the Code retains to itself its own specific laws in relation to prescription, such as in canons 1362-1363, by referring certain periods of time for the extinction of criminal actions or actions to execute a penalty.
4. In matters of education
The following canon is the foundation on which all the other specific rights and duties of the laity rest. The responsibility mentioned in this canon is primarily that of the parents, but it is not exclusive to them. When necessary, the Church also has the right and duty to provide for the Christian education of children. Lay members of the Church who are also parents have the same civil rights and freedoms as all citizens. To the fundamental right and duty of parents with regards to the education of their children corresponds a duty on the part of the civil authority so to allocate funds that parents are truly free to selects schools for their children in accordance with their conscience.
The Code of Canon Law addresses the issue of education through the following canons:
Canon 226 § 2: “Since they have given life to their children, parents have a most grave obligation and possess the right to educate them. Therefore, it is for Christian parents particularly to take care of the Christian education of their children according to the doctrine handed on by the Church.”
Canon 793 § 2: “Parents also have the right to that assistance, to be furnished by civil society, which they need to secure the Catholic education of their children.”
Canon 797: “Parents must possess a true freedom in choosing schools; therefore, the Christian faithful must be concerned that civil society recognizes this freedom for parents and even support it with subsidies; distributive justice is to be observed.”
Canon 799: “The Christian faithful are to strive so that in civil society the laws which regulate the formation of youth also provide for their religious and moral education in the schools themselves, according to the conscience of the parents.”
5. In matters of appointment of bishops
No rights or privileges of election, appointment, presentation, or designation of bishops are conceded to civil authorities. In the early centuries, a bishop was elected by popular vote. Gradually, however, the election came to be restricted to members of the clergy of the diocese. As a result of the growth of interference in these elections by civil authorities, the Holy See came to reserve to itself the right to appoint bishops. Today, the majority of bishops in the Catholic Church are freely appointment by the Pope.
Curiously, a few dioceses have retained the right to elect their own bishop, subject to confirmation (recognitio) by the Pope, such as some dioceses in Germany, Salzburg in Austria, and Chur, St. Gallen, and Basel in Switzerland. The following canon refers this legislative area:
Canon 377: “The Supreme Pontiff freely appoints bishops or confirms those legitimately elected.”
6. In matters of the celebration of marriage:
Through the following canons the Church affirms the legal principle that divine law binds everyone baptized or not, and so its prescriptions apply to all marriages; these canons also acknowledge the competence of the state regarding the merely civil effects of a marriage. Such effects are referred as registration, succession, inheritance, the name borne by a wife and by children, and tax liability. In addition to the effects of marriage, the civil authority frequently stipulates certain requirements concerning such things as the time and place of the ceremony, blood tests, prior notice, and the like. As long as these do not conflict with the substance of marriage or its essential properties, they can and should be followed. The Church does not recognize civil legislation which is contrary to divine law or, in the case of Catholics, which is contrary to canon law. These canons are quoted as follows:
Canon 1059: “Even if only one party is Catholic, the marriage of Catholics is governed not only by divine law but also by canon law, without prejudice to the competence of civil authority concerning the merely civil effects of the same marriage.”
Canon 1071 §1: “Except in a case of necessity, a person is not to assist without the permission of the local ordinary at:
2º a marriage which cannot be recognized or celebrated according to the norm of civil law.”
In this particular area of marriage, I would like to make a particular reference to canon 1083 and its implications with civil law. Canon 1083 § 1 establishes that “A man before he has completed his 16th year of age and a woman before she has completed her 14th year of age cannot enter into a valid marriage.” The second paragraph of this canon establishes that “The conference of bishops is free to establish a higher age for the licit celebration of marriage.”
The analysis of this canon makes aware that those who have not yet attained sufficient use of reason and discretion of judgment to give adequate matrimonial consent are, by virtue of the natural law itself, incapable of contracting marriage. Ecclesiastical law declares through this canon a minimum age below which people cannot marry validly; this age is 16 for a man and 14th for a woman, the higher age for men reflecting the tendency for adolescent boys to mature later than girls. Thus, a man cannot marry validly until the day after his 16th birthday, and a woman until the day after her 14th (Canons 202 & 203). Conferences of bishops, in view of their local circumstances are allowed to raise the age required for the lawful celebration of marriage, which sometimes is used to make the age the same as that required by local civil law.
The United States Conference of Catholic Bishops (USCCB) has risen the age of marriage to 18th for both man and woman. Given the high failure rate in marriage of the very young and given the possibility that even before 18 years of age the parties may not have sufficient discretion of judgment for valid consent, a dispensation from this impediment should be given only “very rarely” and then only for the most “serious reason.” For information on diocesan procedures about the request of canonical dispensation of age, it would be necessary to consult with the local diocesan tribunal/chancery in every diocese.
7. In matters of contracts and especially alienation
Canon 1290: “The general and particular provisions which the civil law in a territory has established for contracts and their disposition are to be observed with the same effects in canon law insofar as the matters are subject to the power of governance of the Church unless the provisions are contrary to divine law or canon law provides otherwise, and without prejudice to the prescript of canon 1547.”
This is an application of the general principle enunciated in canon 22, which in the matter of the law of contract has had a long-established place in canonical jurisprudence. In effect, this regulation canonizes and makes its own, with the same effect, whatever the local civil law requires concerning contracts. There is a twofold proviso: (a) that the civil law in question is not contrary to divine law, and (b) that the canon law itself, even by way of particular law, does not provide otherwise for specific aspects or transactions. This is one of the most prominent examples of the church’s canonization of an area of civil law. Proper advice and guidance of a civil lawyer competent in this particular field should be sought.
Keep in mind that the Code of Canon Law of the Roman Catholic Church refers the word alienation, in reference to the Latin term, alienare, meaning to make something another’s, as in the transference of property or the conveyance of temporal goods. Each conference of bishops sets minimum and maximum value amounts, in reference to the alienation of property, for the territory. The transactions subjected to canonical normative are classified as follows:
• For transactions below the minimum, no higher authorization is needed.
• For transactions between the minimum and the maximum, the bishop’s permission is required.
• For transactions that exceeds the maximum, or when the goods are of special artistic or historical value, the permission of the Holy See must be sought according to canon 1292.
The United States Conference of Catholic Bishops has enacted the following complementary legislation in reference to the maximum and minimum sums for the alienation of ecclesiastical goods: the maximum is $10,948,000 for dioceses of population of 500,000 or more and $5,475,000 for all others; the minimum is $1,095,000 for dioceses of population of 500,000 or more, and $547,500 for all others; for juridic persons subject to the diocesan bishop the very maximum sum for alienation is $5,475,000 and the minimum is $27,373.
8. In matters of pious dispositions and foundations
This canon states a basic principle of the Church’s position in respect to donations which people wish to make to what are here called “pious causes:”
Canon 1299 §1: “A person who by natural law and canon law is able freely to dispose of his or her goods can bestow goods for pious causes either through an act inter vivos or through an act mortis causa.”
The following paragraph of the same canon applies both to a will and to a donation mortis causa. Precisely in order to avoid controversy after the donor’s death, it prescribes that, where possible, the formalities required by the relevant civil law are to be observed. This part of the law recognizes that in certain circumstances it could be impossible or extremely difficult to fulfill the civil requirements in which case it would then usually be impossible to enforce the donor’s wish in the civil forum. There remains nonetheless an obligation in conscience upon their heirs to carry out the donor’s intention, assuming, of course, that this is known for certain. Anyone who is in position to do so, cleric or lay person, is obliged by this canon to bring that obligation to the notice of the heirs; the canon affirm this obligation:
Canon 1299 § 2: “In dispositions mortis causa for the good of the Church, the formalities of civil law are to be observed if possible; if they have been omitted, the heirs must be admonished regarding the obligation, to which they are bound, of fulfilling the intention of the testator.”
9. In matters of disciplinary actions
This particular canon illustrates the Code’s appreciation of the role of an ecclesiastical judge, even to the point of extending a degree of discretion to the judge in cases where “the law may use obligatory words” in respect to the application of a penalty, in some civil law jurisdictions referred to as a “mandatory sentence,” where in fact no discretion is permitted to the judge. The following canon emphasizes that this discretion be exercised according to (the judge’s) own conscience and prudence, not impulsively or on the basis of any whim. Moreover, the situations in which it may be exercised are clearly determined.
Canon 1344: “Even if the law uses perceptive words, the judge can, according to his own conscience and prudence:
2º abstain from imposing a penalty, impose a lighter penalty, or employ a penance if the offender has reformed and repaired the scandal or if the offender has been or, it is foreseen, will be punished sufficiently by civil authority.”
In two it is established that in penal law the fundamental objective of penalties is the reform of the offender or the repair of damage or scandal, if both these ends have been achieved prior to the application of a penalty, the judge is given discretion either to abstain from imposing a penalty altogether or to substitute a less serious penalty or even a penance, which basically presents another good example of the essentially pastoral nature of the Church’s penal law. Moreover, the same discretion is given to the judge in cases where the offender has already been punished sufficiently by the civil authority or where such punishment is justifiably foreseen. In this case, too, the purpose of the penal law has been achieved and there is no need to add to the affliction of the one being punished.
10. In matters of contentious trials
In matters of trials, canon law establishes that a judge may never introduce a case on his own initiative; rather he must await a plea from either a person whose interest is involved in the matter in dispute or, in cases involving the public good, from the promotor of justice, which is the equivalent of a prosecutor in a civil court of law. This particular canon states:
Canon 1501: “A judge cannot adjudicate a case unless the party concerned or the promotor of justice has presented a petitioner according to the norm of the canons.”
11. In matters of temporal goods
Canon 1284 § 1, states that, “All administrators are bound to fulfill their function with the diligence of a good householder.” The following paragraph enumerates for us a list of duties that must be carefully performed by ecclesiastical administrators by describing nine areas of operation; from that list, I will comment on two. There is a particular stress on the need to comply with the relevant civil law as a means to protect Church property, and thus avoid litigation on the issue of negligence of administrators. From this particular point of view, it is always relevant that the Church’s authorities and ecclesiastical administrators do not hesitate to use the service of a competent legal advisor in this particular field.
The law of the Church follows the spirit of the Second Vatican Council, especially on the principle of accountability, which recommends that the Church’s administrators, in different degrees, prepare an annual budget for higher authorities to review; it is left to particular legislators to determine the precise form in which it should be presented. On the diocesan level, the evaluation of the duties of an ecclesiastical administrator is properly regulated by particular or proper law or by a diocesan directive. The canon states the following:
Canon 1284 § 2: “Consequently they must:
2º take care that the ownership of ecclesiastical goods is protected by civilly valid methods;
3º observe the prescriptions of both canon and civil law or those imposed by a founder, a donor, or legitimate authority, and especially be on guard so that no damage comes to the Church from the non-observance of civil laws;”
Additional provisions of this canon tell us that goods, whether by way of property or of money, given to and accepted by an ecclesiastical administrator for a specific purpose, may be used for that purpose only; this prescription should alert the administrator to the need for prudence and careful consideration before accepting such gifts and for the proper dialogue with the donors or their legal representatives in regard to their intentions.
Now, the question of the investment of the so-called surplus money requires the consent of the respective ordinary, which is needed only if there is question of converting such money into stable capital, though not for the simple deposit of money into a bank account from which interest would accrue. The canon further reminds us of the absolute need to keep accurate records securing their protection in an adequate filing-cabinet or other archive.
Conclusive Statement
The Catholic Church, while being a spiritual reality, is also a material entity, dependent on secular types of organization, financial models, and juridical structures to accomplish its ministry in the world. From the fact that the Roman Catholic Church has its own Code of Canon Law, the Church utilizes various legal institutes from the secular law to assist in its mission.
Even though canon law applies only to the internal governance of the Church, it does have common historical roots and structural similarities in secular systems. Therefore, some principles and practices that exist in other systems can serve as practical guidelines to Catholics to understand the Church’s legal structures and how to properly defend their rights in the Church through sound canonical processes. What we can see in practice now is how the Roman Catholic Church has canonized the secular law in certain areas in order to be in tune with the modern world.
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