Foundations

Foundations of Canon Law

Reasons to study (Torfs)

Foundations of Canon Law Reasons to study (Torfs) General Introduction to Canon Law Definition of Law Theology definition - for comparison History of Codification Corpus Redaction of New Code Promulgation Collaborators of the diocesan bishop

1. Canon Law is at crossroads of good and evil: Spirituality and Law - people groveling for money and upholding structures, and people striving to do good. Bad structures and good ideas.
   

2. Current debate about "norms and values". In our decadent society we need it. But they are not the same - norms are needed when there are values not followed. It should be 'or'. We go to norms when we aren't living values. So Canon Law is more impt when values are low.
   

3. Canon Law can be the bridge of the church in a secularized society. Canon Law represents church values to the world. Official discourse starts Dogmatic, Pastoral, Social Theology, now it is canon law that makes the link. After all, everyone knows law.
   

4. Popes and bishops are often Canonists first. Career choice
   

5. Canon Law has first the tree then the roots. The practical first, then the theoretical comes after. Celibacy first practiced, encouraged, etc. Then in the 12th C a norm. So you don't have to deal with patrimony issues. Medieval times, ordination without incardination. Control of clergy vice: limitless 'pastoral' activities. Theological foundations came after: free to devote time to church. A strange mix of truth, hypocrisy and pragmatism.
   

6. Autonomous faculty in KU Leuven - Smallest faculty. Canonica - 30 years - many activities.

General Introduction to Canon Law

• Theologians and canon lawyers going into to Canon Law
  

• Theologians think law is dry, Jurists think Theology is too abstract.
  

• Need Codex basic instrument of the discipline. Theo / Legal and mixed canons.
  

• Jesus Christ had little interest in law - he did not formulate documents, establish an organization - he had no jurisprudence. This was not according to Jewish expectations. A few times Jesus asked juridical questions and responded with the foundations and background of the law.
  

• Now the followers of Jesus have 1752 canons. Jesus would wonder.... There are diplomatic relations with 174 nations. 3000 people working in Roman Curia. Is all this necessary?
  

• CIC is product of 70s-80s. It is a child of its time. Penuria - lack of priests is not foreseen. You won't find a solution in the codex.
  

• Canon 330 is Theological information: Just as, by the decree of the Lord, Saint Peter and the rest of the Apostles form one College, so for a like reason the Roman Pontiff, the successor of Peter, and the Bishops, the successors of the Apostles, are united together in one. - Found also in Lumen Gentium. They took the text out of context. E.g. Collegium - taken from Lumen Gentium - which had a nota explicativa giving the meaning, different from the juridical meaning.
  

• Canon 849 Baptism, the gateway to the sacraments, is necessary for salvation, either by actual reception or at least by desire. By it people are freed from sins, are born again as children of God and, made like to Christ by an indelible character, are incorporated into the Church. It is validly conferred only by a washing in real water with the proper form of words. Law should say who does what, when and how. The underlined is law. Other is Theology is information. "I like theology but I don't like it when I find it in law books"
  

• (Thesis idea - rewrite chapter and separate the theological and juridical)
  

• Question: 1917 code had less/no theology. How would you present theology of Canon Law in that era?

Definition of Law

• System of rules and institutions. A complex totality.
  

• Binding system as a whole. The totality is binding, even though some norms are enabling or advising.
  

• For the external aspects of life. No thought police. But our community is more than external life. E.g. Baptism is more than external washing with water.
  

• For a specific community. Scope and jurisdiction of law is part of law For Italians is an ideal that can't be reached - so we have exceptions and dispensations, etc. Germans though have law and it is binding. E.g. Switzerland has no maritime law but Belgium's is quite complex about maritime, and language use (Language Legislation). So some Canon Law is puzzling to civil jurists - magisterium, sacraments.
  

• To realize its goals. Promote harmony and resolve conflicts

How may legal systems? 200 states, global, state and intrastate. Lower law can't contradict higher law. Canon Law is infra-state so has to respect state. So that catholics always have to follow Canon Law and local law. You can be subject to law of several systems. They can conflict. In serious matters there can be allowances for other legal systems. Freedom of Religion.

• E.g. Belgian Muslim. He got money from Unemployment. State organization offered work (which he was obliged to take) at a slaughterhouse. Ct allowed.
  

• E.g. Moroccan law allows polygamy. Moroccans in Belgium. Can he bring them in, and can they receive death benefits. Ct accepted if marriage was before first contact when Belgium.
  

• E.g. 50,000 Belgian protestants. Protestant wouldn't repair catholic church roof.
  

• E.g. Sex change operation - married civilly. Sought canonical marriage - woman: born boy, baptized boy, can't do. Man's parish - they didn't tell. People started to talk in town - parish heard. Priest said okay, because Belgium accepts. But actually canonically not okay.
  

• E.g. difference between nullity and divorce or dissolution. Marriage asks community to recognize relationship between two persons. Juridic marriage begins when this is made publicly. Ups and Downs, separation. Decision to go separate ways - Divorce based on proof of the marriage life. Church doesn't accept. Nullity declares it was not valid from the start. Look for sources in the time before the marriage or at latest on the day of marriage. Civil few nullifications, Church few dissolutions. Also be careful - nullity means juridically, but the pain, the suffering, the children remain.
  

Legal system of RC church with central governance - Holy See. Vatican is different - it is a civil entity where the Holy See is domiciled. Canon Law is the totality of norms governing the external life of the catholic community locally and worldwide.

Codex is universal. There are also diocesan, conference and religious law. Codex is rather recent, also codification is recent in Europe - 1804 Napoleonic Code. Codex: 1917 and 1983.

Canon 330 was added by the pope in summer 1982 after 20 years of work by commission. 1087.2 was deleted.


• Can. 1087 - Invalide matrimonium attentant, qui in sacris ordinibus sunt constituti. Those who are in sacred orders invalidly attempt marriage.
  

• attentant - you can do but its invalid, you try but nothing comes of it.
  

• (unpromulgated paragraph 2 said married deacons who were widowed could remarry.)
  

• Now it is an administrative permission to marry - and it is uncertain.
  

• This was brought in 3/25/1982 definitive text was given to the pope. He had to decide to promulgate. In the summer and with a small commission (8 theologians & canonists). Changed, added and removed. This canon was added at that time.
  

• Now it is an administrative permission to marry - and it is uncertain.
  

• A comparison was made between the preferences - additions, deletions, changes, and deduction was made of the underlying theological thinking.
  

• Codex is a project of people and of the time in which it was written. Context.
  

The pope has full, immediate, supreme, universal power, and is judged by no one canon 1404. *Bishop of Rome - therefore pope. Early seen as first among equals, See of Peter, in 2nd Century already certain moral authority. Early Americans asked for pope to appt bishops to avoid appointment by European monarchs. Diocesan. Bishop has full power for diocese.

• 3 key functions: bishop of Rome, diocesan bishops, pastor of parish - parochus
  

• Lawyers bring life under control - manipulating reality, bring order and harmony. peacefully resolving conflicts. This is a way of coping with life.

Preliminary explanatory note on LG 22 The commission has decided to preface its appraisal of the amendments with the following general observations.

1. College is not understood in its strict juridical meaning, that is as a group of equals who might hand over their power to their president, but as a stable group whose structure and authority must be deduced from revelation. For this reason in reply to amendment 12 it is explicitly stated concerning the twelve that the Lord constituted them 'like a college or a stable group', See also amendment 53, c. For the same reason. concerning the college of bishops sometimes the words order or body are also used. The parallelism between Peter and the rest of the apostles on the one hand, and the supreme pontiff and the bishops on the other, does not imply that the extraordinary power of the apostles is transmitted to their successors, nor, as is evident, does it imply equality between the head and the members of the college, but only a proportionality between the first relationship (Peter - apostles) and the second (pope - bishops). Hence the commission decided to write in no. 22, not the same but a similar relationship. See amendment 57.


• A person becomes a member of the college by reason of episcopal consecration and hierarchical communion with the head of the college and the members. See no. 22 sec.1 at the end. In the consecration there is given ontological participation in the sacred functions, as is undoubtedly clear from tradition including the liturgical tradition. The word functions is used deliberately, and not powers, because the later word could be understood of power all ready for action. But to have such power ready for action there has to be added, through hierarchical authority, the canonical or juridical determination. This determination can consist in the granting of a particular office or in the assignment of subjects, and it is given in accordance with rules approved by the supreme authority. A further rule of this kind is required by the nature of the case because it is a question of functions which have to be exercised by a plurality of subjects cooperating hierarchically by the will of Christ. It is evident that this 'communion' was applied in the life of the church according to circumstances before it became codified, so to speak; in the law.
  

• For this reason it is expressly stated that hierarchical communion is required with the church's head and members. Communion is a notion which was held in high esteem in the ancient church (as it is also today especially in the east). It is understood, however, not as consisting in some vague disposition but as an organic reality which requires a juridical form and at the same time is animated by charity. Therefore the commission decided almost unanimously that 'in hierarchical communion should be written. See amendment 40 and also what is said concerning canonical mission under number 24.
  

• The documents of recent supreme pontiffs concerning jurisdiction of bishops are to be interpreted in accordance with this necessary determination of powers.
  

• The college, which does not exist without its head, is said to be 'also the subject of supreme and full power over the universal church'. This was necessarily to be admitted lest the Roman pontiff's plenitude of power be endangered. For the college necessarily and always presupposes its head, who in the college fully retains his function as vicar of Christ and pastor of the universal church. In other words, the distinction is not between the Roman pontiff and the bishops taken together, but between the Roman pontiff taken separately and the Roman pontiff together with the bishops. And because the Roman pontiff is the head of the college, he alone can perform certain acts which are in no way within the competence of the bishops, for example, to call together and direct the college, to approve the rules of procedure, etc. See amendment 81. The care of the whole of Christ's flock has been committed to the supreme pontiff and it is his prerogative, in accordance with the changing needs of the church in the course of time, to determine the way this care should be exercised either personally or collegially. In setting up, encouraging and approving collegial activity the Roman pontiff takes into consideration the good of the church and proceeds according to his own discretion.
  

• The supreme pontiff, as supreme pastor of the church, can exercise his power at all times as he thinks best, as is required by his very function. The college, however, while always in existence, does not for that reason permanently act by strictly collegial action, as is clear from the church's tradition. In other words it is nquestot always 'fully active', indeed only periodically does it act in a strictly collegial way and then only with the consent questions of the head. The expression 'with the consent of the head' is used to avoid any idea of dependence, as though on someone who is outside; on the contrary, the expression 'with the consent of brings out the communion between head and members and entails the need of the act which is the prerogative of the head. The matter is expressly stated in no. 22 §2 and is explained there at the end. The negative formula 'only with' covers all cases: so it is evident that the rules approved by the supreme authority must always be observed. See amendment 84.
  

• Everywhere it is clear that it is a question of union of the bishops with their head, and it is a question of the bishops acting independently of the pope. In this case, if the action of the head is missing, the bishops cannot act as a college, as is evident from the idea of a college. This hierarchical communion of all the bishops with the supreme pontiff is certainly hallowed by tradition
  

• N.B. Without hierarchical communion the sacramental ontological function, which is to be distinguished from the canonico-juridical aspect, cannot be exercised. The commission decided that they should not get into the questions about liceity and validity; these are left for the discussion of theologians, especially with regard to the power that is in fact exercised among our eastern separated brothers and sisters and there is a variety of opinions on how this is to be explained.

Nature of Canon Law

Theology definition - for comparison

Law is a system of rules and institutions binding as a whole external aspects of life in a specific community - lawyers organize life. Goal: harmony and peaceful solution of conflicts

Theology is a system

of holy texts and a living tradition - it is a system of belief,


appealing and inviting people -


to a meaning of life - to live in accord, to develop a meaning of life coming from the story of Jesus


In the line of Jesus Christ -


Goal: transmission of the message - transmissio - traditio and praxis.


• Not manipulating, but make clear the deep meaning of life. Starting from Jesus life, words and action. Translate that to today. Theologians need another language to communicate meaning: narrative, parable, analogy, abstraction. This is a different activity than law. We then form community together for this purpose. But then the community needs law. People are here freely; we organize, give coherence. (You cannot escape the state legal system.) But there is not much force in canon law - excommunicatio - 'dis-invite' - take back offices, refuse privileges. Community of free people. When we start using canonical hardball, the relationship is already in crisis. The legal system then needs to understand this nature of the community - need to know how to juridically organize sacraments when we don't know what the sacrament is. Civil lawyers may do Canon Law from a purely civil point of view. Good theological basis is essential. Canon Law is use of juridic techniques for a very specific community. Theology and law come together.
  

  Some say Codex is juridic translation of Vatican II.
  

• You cannot just translate theological ideas into juridical language. They are too different. Grow in faith is theological - you can't say that in juridical language. Juridical language: be in church two hours a day. prayer is internal, can't say pray two hours. Many norms concern the sacraments - external aspects: ministers, conditions, external elements, times. Vatican 2 was much more than external issues. Law is a limited instrument - gives stability, continuity, structure. You can't corral the spirit. Canon Law can develop structures, and implementing tools.
  

• The codex is in the line of Vatican 2 theology as understood by the legislator. People responsible for the making of the codex were of a specific time and specifically choses. The legislator could only make law as they understood the Council. 1963-1983 redaction commission set up by John 23. This is a long period - but it is a particular period of Church history. Storms, difficulties, protests - worldwide and in the church. 70s calm after the storm. Options in the codex reflect this period. E.g.: few canons on the lack of priests, now a critical reality in many parts of the church.

History of Codification

• Preface to the Latin Edition has full story of the history of the codex.
  

• 1900 years without codex - this means most of our legal history is corpus.
  

• 1904 Pius X started codification - Gaspari chief agent. March 19, 1904. In the first months of his pontificate Pius X - already bishops were asking for this at Vatican One.
  

• Moto Proprium: Ardium Sane Munus - Council and consultors to develop guiding principles. 10-12 subcomissions:
  

• 5 books - civil law had 3 parts 2414 canons - it was forbidden to translate. Promulgated May 27, 1917 - Pentecost. Binding 19 May, 1918.
  

1. De Normis Generalis -
   

1917 code: Canon Licet in Codice iuris canonici Ecclesiae quoque Orientalis disciplina saepe referatur, ipse tamen unam respicit Latinam Ecclesiam, neque Orientalem obligat, nisi de iis agatur, quae ex ipsa rei natura etiam Orientalem afficiunt.


1983 code: The canons of this Code concern only the Latin Church.


2. De Normis Generalibus
   

3. De Personis,
   

4. De Rebus - goods, also sacraments, teaching office
   

5. De Processibus
   

6. De Delictis (sanctions)

• The codex is 25 years old in 08. Conference on anniversity but everything is in Italian, is that really universal
  

• CCEO 1054 Easterners broke. Small groups came back around time of protestant reformation and they could keep their own traditions - 21 groups - Ecclesia sui iuris - Their own codex 1990. In latin.
  

• Canon 28 - 1. A rite is the liturgical, theological, spiritual and disciplinary patrimony, culture and circumstances of history of a distinct people, by which its own manner of living the faith is manifested in each Church sui iuris. 2. The rites treated in this code, unless otherwise stated, are those which arise from the Alexandrian, Antiochene, Armenian, Chaldean and Constantinopolitan traditions.
  

• A Lex Fundamentalis was proposed, but never came to fruition. Most canons incorporated into the Canon Law.
  

• 1917 code, Very logical and clear - good Latin. Basis of strong uniformity. Just follow the law. Pontifical schools of Canon Law. Pontifical Commission for Authentic Interpretation was created. Authentic interpretation had the same value as a legislative text. American Management Association - "best organization in the world" 1957. Pius XII very strict ruler: no ecumenical contact - well organized, clerical, hierarchical. Pius XII well respected in and out the Catholic Church. Rule of law was very strong.
  

• John XXIII - basic training was history then canon law - nuntio in Paris. A bit of a course correction. A few days before his 77th birthday. Jan 25, 1959. Three dreams (1) synod of Rome - it came in 1960. (2) Ecumenical Council to reflect on the situation in the church. (3) Revision of the Code of Canon Law. When you change the theological views, you have to change structures and institutions.
  

• Last 50 years of the church - five periods as they effect Canon Law.
  

• Oct 1958 - Oct 1962 Election of John XXIII to Vatican II the time before Vatican II - period of expectations, collective hope, opening windows, aggiornamento (du jour) bring the church to the day, the time, also impossible dreams. This was true both inside and outside the church. Relaxation in the cold war. 3 names big names: John XXIII, JF Kennedy, Khrushchev. Also decolonization and independence in Africa.
  

• Oct 1962 - Dec 1965 period of the council - all bishops far from daily work. Reflecting on the church. Bishops from all over the world, even from the same country who had never met. Full of ideas, discussions. There were conflicts - Ottaviani CDF. Some times heavy storms, promoters and resisters. John XXIII died Spring 1963. Montini elected June 1963 as Paul VI. Montini was an intellectual, cultured. Working for a long time in the curia. Decided to go on with the council. He intervened to remove topics of discussion.
  

• Jan 1966 - Oct 1971 immediate post council - storms and difficulties. Paul VI instituted structures to bring Vatican II into effect. E.g. Fostered collegiality by synods of bishops, developed presbyteral councils. Changing the lives of millions of people is not easy. People differed in receptivity and acceptance of change. Some chaos. 1917 codex was raised as an objection. 25% of religious walked. Clergy went from 480,000 to 400,000 in 10 years.
  

• Many changes took place, but there was a systematic planning or implementation. For organizational change you need unfreezing, movement and refreezing.
  

• Church didn't know how to deal with psychological resistance.
  

• There were also storms outside the church - Vietnam War period in USA. In Leuven 6-7 weeks without classes in a student strike.
  

• During this period, Canon Law was being drafted.
  

• October 1971 - October 1978 Calm after the storm in the last years of Paul VI. October '71 was the 3rd synod of bishops. One topic was life and status of priests and the rule of celibacy. Synod was well prepared at the local level. Nothing changed - things settled down after that. It created an atmosphere of collective fatigue. Changing a billion people is quite a task. The only new phenomenon that was visible: the base communities starting in Latin America, especially in Brazil. Albino Luciani short conclave, short pontificate - 'it was the Holy Spirit's choice'. Second conclave JPII - no one said it was the Holy Spirit this time.
  

• October 1978 -April 2005 JPII Period of inner church stabilization. Not much evolution internally, but the relations ad extra were developed much more. At the same time the inner church ad intra were not solved, they remained the same. Many of the problems waiting for answers in 78 are still waiting for answers today. Stabilization but no progress.
  

• April 2005 — new period starts April 19. Small steps in coming years - Jesus book is given as personal theological research - you can contradict him on this. Frankly admits we have new historical information and where there are historical lacunae. Traditionally pope knew everything. He gave several theological opinions and said 'I prefer that one.' New appointments without revolution. Change is in the air.

Corpus

1. This is only the second codification in 20 centuries. Law was developed over the centuries in response to problems. E.g. Baptized then apostacy and came back. Canonical response said baptism only once. Local councils and groups responded to issues that arose. Nicea 325 gave canons for universal church. Most councils both (local and general) have theological text then practical norms.
   

   People then made private collections of existing law. Copies in scriptoria - corrected, falsified, edited, invented, embellished. Most were chronological collections.
   

   There were also decretal leters with popes responding to problems, questions. These too were copied and collected.
   

   1140 Gratian (Bologna) Concordantia Discordante Canonae - Later called Gratian's Decretum. This became the primary source of canon law at that time and forward. Beginning of Canon Law as distinct from theology. Decretalists commented on this
   

   1234 first official collection Raymond de Penafort executed it for pope. Vatican One 1869 - 1870 stopped by the war. Some bishops asked for a codex at that time. Not till Pius X it began. It contained the essential law of the church.

Redaction of New Code

• Mar 1963 - began to work on the new code, appointed commission. First meeting they decided to suspend work till after the council. Last session of Vatican II, Paul VI gave the impetus for the work to start in earnest.
  

• Subcommissions were created for each of the major topics.
  

• Some canons were lifted from the old codex.
  

• New materials added from the conciliar documents
  

• Legislation of Paul VI was added as well.
  

• Unification of the text was a problem. Principia Directiva were issued. October 1967 Synod discussed principles. 1969ff Communicationes - the news of the redaction.
  

• Juridical nature retained
  

• Harmonize external and internal forum
  

• pastoral care of souls
  

• Special faculties to reduce recourse to Rome
  

• Subsidiarity
  

• The protection of rights of persons
  

• Procedure to protect subjective rights
  

• Keep Territoriality
  

• Reform penal law
  

• New systematic arrangement - Seven books -
  

* Questions: Separate codes for east and west? Lex Ecclesiae Fundamentalis: shall we have basic law? Onclin made several drafts. 93-94 canons in 3 chapters, 1) membership, rights and obligations. 2) Munera or Tasks of the church 3) church ad extra. Continued till 1980 - lots of opposition, especially from theologians, often without good arguments. Finally John Paul II decided not to promulgate, but integrated 37 of the canons in the new code: Rights and Obligations of the Christan Faithful.

• Page 11 - first schema of administrative procedure (totally new) Administrative tribunals - clear limits for actions of bishops.
  

• 1973 penal law
  

• 1975 sacramental law
  

• 1976 schema on procedure - protection of rights.
  

• November 1977 all the schema were sent to the bishops and they had the opportunity to respond. During the calm after the storm period.
  

• 1980 the whole thing was put forth as a schema - June 29, 1980 printed schema novum was given to pope. Pope gave it to the commission and they wanted to send it to all the bishops in the world. Pope said no - instead, he appointed bishops to make the commission look larger. The enlarged commission reexamined the schema October 1981. Six basic questions:
  

• Jurisdiction of lay people in the church - Canon 129 - No postestas jurisdictionis. But in the codex excptions are made. Canon 1421 allows lay judges.
  

• Second marriage of deacons - yes, Canon 1087 gave the right, pope took it away.
  

• 34 other questions proposed by at least 10 members. Text was revised with the new decisions April 1982 the Schema Novissimum was given to pope. That summer the pope revised again and issued final text. The commission prepared the final draft. Comparisons will show differences. Jan 1983 promulgated - 24 years after John XXIII's announcements.
  

• First problem: Language - every bishop's conference got a letter telling them to make a translation, but one spanish, one english, one french, etc. Couldn't be done - one by commonwealth, one by rebels. Sometimes the tranlsations are not corrrect. It is a very difficult work to do. Translations are not juridically binding - an official information about the latin text. Now there is a Pontifical Council for the Authentic Interpretation of Legislative Texts.
  

• E.g. Canon 766 The laity may be allowed to preach in a church or oratory if in certain circumstances it is necessary, or in particular cases it would be advantageous, according to the provisions of the Episcopal Conference and without prejudice to canon. 767 §1.
  

• Can. 767 §1 The most important form of preaching is the homily, which is part of the liturgy, and is reserved to a priest or deacon. In the course of the liturgical year, the mysteries of faith and the rules of christian living are to be expounded in the homily from the sacred text.
  

• Preaching is general, homily is specific - exclusive for priest or deacon - question without answer: can a bishop dispense from this? Pontifical Council said no, can't dispense because it part of universal norms. Though there are ways of working around it.
  

• E.g. Canon 455 - Holy see has to review law of bishop's conferences. They can only say ok or no - rework it. Recognitio.
  

• Eg Canon 284 Clerics are to wear suitable ecclesiastical dress, in accordance with the norms established by the Episcopal Conference and legitimate local custom. Belgium, 1986, issued a norm. The norm was : with the exception of liturgical services, every priest in belgium has to wear either the cassock, or a dark suit, with roman collar or a cross. Impose a uniform and you give a choice. Dark isn't defined, dark red? purple? How wear the cross. On which day?
  

• Conferences had to make local norms to flesh it out.
  

• Religious institutes also make law

Promulgation

The guidelines were given at a Synod of Bishops – sub segreto. Herein the basic principles to be taken into consideration are examined. Some schemata were also published. New Canons. Schemata were sent to the Bishops in small booklets (1972-77) and they could then react and ask for changes or for something to be added etc.


In 1980 the first codex was made – called the Schema Novum. This was the schema of a new codex which in 1980 had 1728 canons. However, the Pope decided not to promulgate the fundamental codex. The best canons, 37 of them were integrated into a new canon – Schema Novissima 1982. In the summer of 1982 the Pope looked at the text from the first canon to the last canon and asked for some changes to be made. In 1983 the final canon was promulgated. This became binding.


There was also an Apostolic Constitution document by which the Pope promulgated the codex. Read this carefully. Arguments as to why the new codex was necessary are theological ones. 25/01/1983 was the actual day of the promulgation of the Codex (see page 31 of your Codex). Make a good summary of the Apostolic constitution for yourself. The introduction has now been dealt with in this class so we can now go by sections. E.g. there is period of delay is called vacatio leges - common to all new laws.


Canon law follows Vatican 2 in time and in principle. Renewal of Christian life. Code is collegial in origin and in content. Law does not replace faith, but facilitates right order in individual and social life in the church. Code must complement and express in law the ecclesiology of Vatican 2.


Foremost among the elements which express the true and authentic image of the Church are: the teaching whereby the Church is presented as the People of God (cf. Const. Lumen Gentium, n. 2) and its hierarchical authority as service (ibid n. 3); the further teaching which portrays the Church as a communion and then spells out the mutual relationships which must intervene between the particular and the universal Church, and between collegiality and primacy; likewise, the teaching by which all members of the People of God share, each in their own measure, in the threefold priestly, prophetic and kingly office of Christ, with which teaching is associated also that which looks to the duties and rights of Christ's faithful and specifically the laity; and lastly the assiduity which the Church must devote to ecumenism.


And in fact a Code of Canon Law is absolutely necessary for the Church. Since the Church is established in the form of a social and visible unit, it needs rules, so that its hierarchical and organic structure may be visible; that its exercise of the functions divinely entrusted to it, particularly of sacred power and of the administration of the sacraments, is properly ordered; that the mutual relationships of Christ's faithful are reconciled in justice based on charity, with the rights of each safeguarded and defined; and lastly, that the common initiatives which are undertaken so that Christian life may be ever more perfectly carried out, are supported strengthened and promoted by canonical laws.


The external form (form externum) of a law: that which can be known by the public. The internal form (form internum) of a law: that sphere which is not public; people’s consciences. E.g. a child adopted out: the external form might be the child belongs to his parents; the internal form might be that this child actually has other parents. Law usually only impacts on external form. Certain norms of the church have impact on the internal and external forms: e.g. a person can receive absolution as long as the sin is not known. Another example: a celibacy vow won't be accepted by the Church unless it is a public vow. The internal form has some importance in Catholic life, so canon law sometimes impacts on both external and internal forms. Need to make sure the two don't contradict each other. Another example: provision is made for secret marriages, which will impact on internal not external form.

Excursus on human rights

Human rights – universal declaration signed 1948; European declaration signed 1950; human rights for members of the Church were first discussed at Vatican II. But, from a Church position, it seems strange to have people demanding their rights in a community of faithful – if you complain your rights aren't being respected, you are always free to leave.


• Rights for all Christians, for clerics, etc. Cf. the Obligations and rights of all Christian faithful, beginning with canon 208. But then, canon 224ff, extra obligations and rights of the Christian lay faithful; and canon 273 ff, extra obligations and extra rights of clerics. Some of these canons on obligations and rights are so vague as to not be useful, e.g.:
  

  Canon. 210 All the Christian faithful must direct their efforts to lead a holy life and to promote the growth of the Church and its continual sanctification, according to their own condition.
  

And again, Canon 212 §3. According to the knowledge, competence, and prestige which they possess, they have the right and even at times the duty to manifest to the sacred pastors their opinion on matters which pertain to the good of the Church and to make their opinion known to the rest of the Christian faithful, without prejudice to the integrity of faith and morals, with reverence toward their pastors, and attentive to common advantage and the dignity of persons. – so they give a right, and at the same time give a warning, and so many limitations that one’s right cannot be claimed any more.


Canon 222§1. The Christian faithful are obliged to assist with the needs of the Church so that the Church has what is necessary 1. for divine worship, 2. for the works of the apostolate, 3.and of charity, 4.and for the decent support of ministers


Then special rights and obligations for lay people, e.g. education of children. Rights and obligations of clergy: canon 285 §3. Clerics are forbidden to assume public offices which entail a participation in the exercise of civil power. E.g. Mayor, Judge, etc.


And again, Can. 285 §1. Clerics are to refrain completely from all those things which are unbecoming to their state, according to the prescripts of particular law. - ie as prescribed by the local bishop. §2. Clerics are to avoid those things which, although not unbecoming, are nevertheless foreign to the clerical state. - but what is 'foreign'???


Canon 277 §1. Clerics are obliged to observe perfect and perpetual continence for the sake of the kingdom of heaven and therefore are bound to celibacy which is a special gift of God by which sacred ministers can adhere more easily to Christ with an undivided heart and are able to dedicate themselves more freely to the service of God and humanity.


§2. Clerics are to behave with due prudence towards persons whose company can endanger their obligation to observe continence or give rise to scandal among the faithful.


§3. The diocesan bishop is competent to establish more specific norms concerning this matter and to pass judgment in particular cases concerning the observance of this obligation.


• Problem with the idea of human rights: it is difficult to know where to go if one's human rights have been abused by the Church; administrative procedure is possible i.e. writing a letter to Rome. The protection of human rights is not fully developed in the Codex.

From here we went to the Code itself - see Book 2 for Can. 368-402, can. 412-430, can. 515-538

College of Consultors: Bishop must select his consultors from the members of the presbyteral council - 6-12 people - they act in certain specific situation. Each serves for 5 years, till their successor is appointed. Canon 502 Canon 335

E.g. Holland, diocessan bishop got from Rome on Tuesday a secret notice of appointment of coadjutor bishop and auxiliary bishop. Friday there was an official announcement of the new guys. The bishop had died on Thursday. Strictly speaking the college of consultors should go ahead. The nuntio called the coadjutor and told him to start working (without officially taking posession). Finally the coadjutor was appointed by Rome.

Collaborators of the diocesan bishop

There are offices to assist the diocesan bishop.

1. Presbyteral council Canons 495ff - obligation to have in every diocese. 1/2 elected, others appointed. consultative only. Disolved when see is vacant. no required number of priests.
   

2. College of Consultors Canon 502 alway present, even in vacant see.
   

3. Pastoral Council 511
   

4. Episcopal Council 473.4, 475.
   

5. Chapter of Canons 503 - old european instutition.
   

6. Diocesan synod 460
   

7. Diocesan curia
   

1. Vicar generals and vicars 475
   

   b. Chancellor and notaries 482
   

   c. Finance council 492
   

   d. Tribunal
   

1. Officialis (head dude) must be a priest with a degree in canon law.
   

   b. Judges (who may be lay peoples 1421)
   

   c. Defender of the bond.
   

   d. In penal cases, promoter of justice is a public function (prosecutor)
   

   e. Notarias - secretary of the tribunal.
   

VG, Judical Vicar, presbyteral council and college of consultors all must be priests, others may be lay.

Conclusions - first contact with canon law and the specific discipline and the organization of the norms of the church. Law is necessary and essential, but has a secondary role. Theology should come first and underpins the law. However the law should be based on good juridic culture. In the past law wasn't so popular in the Church and some are suspicious of it. However, when law is understood, it is a technique and tool to further the aims of the society. There are many sections of the code; by reading certain sections together, we explored the distinction between theological and legal canons.

Exam information - written preparation is not to turn in but the basis of

1 detailed question


- what is the difference between the vicar general and a judicial vicar.


- in what way can a diocese become vacant.


2 more general questions.


Give and overview of the institutions collaborating with the bishop.


What are the general rights and obligations of the bishop?


- bring in what you feel is appropriate

Comments about the reader. Directory for bishops, Ch 1,2,8. and commentary on the canons studied in class. This is supplemental information.